CH. NARAYANA RAOversusUNION OF INDIA & ORS.

                    [2010) 11 S.C.R. 205


                    CH. NARAYANA RAO                                A
                               V.
                   UNION OF INDIA & ORS.
               (Civil Appeal No. 7903 of 2010)

                    SEPTEMBER 10, 2010
                                                                    B
  [DALVEER BHANDARI AND DEEPAK VERMA, JJ.J

     Service Law:

      Seniority - Claim for counting ad-hoc service for seniority   c
- Stenographer engaged on ad-hoc basis - His services
regularised from the date he passed the proficiency test - He
claimed that he should be granted seniority from the date of
initial appointment - HELO: No relief can be granted to the
employee - His seniority has been correctly worked out only         0
from the date he passed the stenography test as
contemplated under the Rules approved by Staff Selection
Commission - Income Tax Department (Group C
Recruitment) Rules, 1990.

     Direct Recruit Class II Engineering Officers' Association      E
Vs. State of Maharashtra and Others 1990 ( 2 ) SCR
900 =(1990) 2 sec 715; State of West Bengal and others Vs.
Aghore Nath Dey and Others 1'~J3 (2) SCR 919 = (1993) 3
SCC 371; and Union of India Vs. Dharam Pal & Ors. 2009
(2) SCR 193 = (2009) 4 sec 170 - relied on.                         F

    0. P. Sing/a and another etc. Vs. Union of India and
Others 1985 (1) SCR 351 = (1984) 4 SCC 450; Narender
Chadha and Others Vs. Union of India and Others 1986 ( 1 )
SCR 211 = (1986) 2 SCC 157 - distinguished.                         G

     Rudra Kumar Sain and Others Vs. Union of India and
Ors. 2000 (2) Suppl. SCR 573 = (2000) 8 SCC 25 -
referred to.

                              205                                   H
    206      SUPREME COURT REPORTS               [2010] 11 S.C.R.


A                        Case Law Reference:
      1990 (2) SCR 900             relied on           para 12
      1993 (2) SCR 919             relied on           para 14
      2000 (2) Suppl. SCR 573      referred to         para 18
B
      1985 (1) SCR 351             distinguished       para 18
      1986 (1) SCR 211             distinguished       para 19
       2009 (2) SCR 193            relied on           para 21
c
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7903 of 2010.

        From the Judgment & Order dated 19.02.2007 of the High
    Court of Chattisgarh at Bilaspur in W.P. No. 388 of 2002.
D
        Sushi! Kumar Jain, Puneet Jain, Pratibha Jain for the
    Appellant.

        Brijender Chahar, B. Sunita Rao, Mohd. Mannan (for B.V.
E   Balaram Das) for the Respondents.

          The Judgment of the Court was delivered by

          DEEPAK VERMA, J. 1. Leave granted.

F      2. The continual riven for seniority with regard to ad-hoc
  service rendered by the Appellant from the year 1981 till his
  regularisation in the year 1992 is required to be adjudicated
  in this Appeal by this Court. Further, we are called upon to
  consider whether the Appellant can be treated as Regular
G Stenographer (OG - Ordinary Grade) from the year 1981 itself.

       3. This appeal arises from the judgment and order dated
  19.02.2007 passed by Division Bench of the High Court of
  Judicature, Chhattisgarh at Bilaspur, in Appellant's Writ
  Petition No. 388 of 2002, wherein and whereunder he had
H challenged the order of the Central Administrative Tribunal,
  CH. NARAYANA RAO v. UNION OF INDIA & ORS.                   207
             [DEEPAK VERMA, J.]
Principal Bench, Delhi, (hereinafter shall be referred to as          A
'Tribunal') passed in O.A. No. 413of1999 dated 02.07.2001.
By the order of the Tribunal, the Appellant's Original Application
filed by him claiming seniority for the period he had worked on
ad-hoc basis till his regularisation was rejected. The order of
the Tribunal has been affirmed by the Division Bench of the           B
High Court by dismissing the Appellant's Writ Petition vide the
impugned judgment. Hence, this appeal.

     4. Factual matrix of the case lies in narrow compass:-

    Appellant was appointed on 26.11.1981 on the post of              C
Stenographer (OG). His appointment was against a temporary
vacancy of stenographer, with the following rider:

     "His appointment is purely on an ad-hoc and temporary
     basis and his services may be terminated any time without        0
     assigning any reasons."

      5. Thus, his letter of appointment clearly stipulated that it
was not only ad-hoc but temporary too, terminable at any time
without assigning any reasons. However, he continued in
service, but after few years, an apprehension arose in the mind       E
of the Appellant and other similarly situated stenographers that
their services may be terminated. Thus, the Appellant and others
were constrained to approach the Jabalpur Bench of the
Tribunal by filing Original Application, claiming that the
Respondent be restrained from terminating their services and          F
they be regularised. Tribunal vide its order dated 23.10.1989
directed that the services of the Appellant and other similarly
situated stenographers, be not terminated, instead they be
regularised subject to qualifying requisite test. The operative
part of the order of the Tribunal is reproduced hereinbelow:-         G

     "The Government may examine and review the position as
     whether it is possible to regularize the services of these
     petitioners by relaxing the rule requiring their recruitment
     through the Staff Selection Commission. If it is not
                                                                      H
    208      SUPREME COURT REPORTS                 [2010] 11 S.C.R.


A         considered feasible by the Government, then we direct that
          the petitioners should be continued in service and the
          respondents are restrained from terminating their services
          but two opportunities be given to the petitioners to attain
          proficiency in Stenography and clear the test with the
B         requisite standard of speed in shorthand etc. before their
          regularisation. In other words their appointments as
          stenographers will be treated as officiating appointment
          although not confirmed but also not ad-hoc pending such
          a regularisation."
c       6. It is clear from a reading of the aforesaid direction that
  the Respondents were restrained from terminating the services
  of the Appellant and two opportunities were directed to be given
  to the Appellant to clear proficiency test so that he becomes
  entitled for regularisation. On the strength of the said order of
D Tribunal, his services were not terminated and he continued in
  employment with the Respondents.

       7. He, thereafter, qualified the proficiency test in
  Stenography conducted by the Staff Selection Commission in
E 1992.. Thus, he was regularised with effect from 12.04.1992,
  the date on which he was declared successful in the test. 50%
  of his past service was also ordered to be counted for the
  purpose of computation of pensionary benefits.

        8. Aggrieved, Appellant submitted his representation with
F the Chief Commissioner of Income Tax, Bhopal on 06.08.1993
  praying for regularisation of service from the date of his initial
  appointment and treating his full ad-hoc service as qualifying
  service for the purpose of pensionary benefits. Since, no fruitful
  results came forth on the Appellant's representation, he along
G with another employee, similarly situated, was constrained to
  file another O.A. No. 413 of 1999 before the Principal Bench
  of the Tribunal at Delhi which came to be allowed on
  11.10.1999. It appears that while the said O.A. was heard, the
  counsel for Respondents had remained absent. Thus, the order
H came to be passed ex-parte.
  CH. NARAYANA RAO v. UNION OF INDIA & ORS.                   209
             [DEEPAK VERMA, J.]
     9. The Department, therefore, filed M.A. No. 593 of 2000        A
in the aforesaid O.A. before the same bench of the Tribunal
praying for the grant of opportunity to them to contest the
proceedings and for recall of the order dated 11.10.1999. The
said M.A. was allowed by the Tribunal on 04.01.2001 and the
parties were directed to appear before the Tribunal on               B
07.03.2001 for re-hearing of the Appellant's Original
Application. That is how the matter was heard again by the
Tribunal. The Tribunal passed its order on 02.07 .2001,
dismissing the Appellant's Original Application. It was this order
of the Tribunal which was challenged by the Appellant before         c
the Division Bench of the High Court by filing a Writ Petition,
but that too met with the fate of dismissal.

     10. The contention of the respondents from the very
beginning had been that the Appellant was one among several
persons who were appointed as stenographers (OG) on purely           D
temporary and ad-hoc basis. However, they were given their
regular appointment as stenographers (OG) in the department
only from the date of passing the qualifying test with approval
by the Staff Selection Commission. All those who had been
appointed alongwith Appellant were treated alike and were            E
given their regular appointment only from the date of their
passing the requisite test. Thus, no case of discrimination was
made out by the Appellant as likes were treated alike.

      11. They have also contended that the observations made        F
by Jabalpur Bench of the Tribunal in the Appellant's first O.A.,
could at best be treated as obiter as the question before the
Bench was only with regard to grant of injunction in favour of
the Appellant so that the services could not be terminated. Thus,
any observations made by the said Bench would not have a             G
binding effect. Even otherwise, it has been contended that the
first order of the Tribunal clearly stipulated that at the first
instance the Respondents were restrained from terminating the
services of the Appellant and the Appellant was given
opportunity to appear in the test twice to qualify for the
appointment on regular basis. It has also been contended that        H
    210      SUPREME COURT REPORTS               [2010] 11 S.C.R.


A passing of the requisite examination was condition pre_cedent
  for appointment on regular basis as per the Income Tax
  Department (Group C Recruitment Rules, 1990), to be
  approved by the Staff Selection Commission and there could
  not have been any deviation therefrom. Unless the Appellant
B had successfully cleared the said test he couldI not have been
  granted the benefits sought by him. As soon as he cleared the
  said test, he was regularised from the date of his passing the
  examination, that is on 12.04.1992. In other words, the
  Respondents have contended that the Appellant alone cannot
c be extended the benefit of regularisation of counting his service
  from the date of his initial appointment, which was not only
  temporary but was ad-hoc also, as the same may amount to
  hostile discrimination with other Stenographers who are
  similarly s.ituated. They have, therefore, contended that the
  Tribunal and the High Court have taken a correct legal view of
0
  the matter, which calls for no interference and appeal deserves
  to be dismissed.

       12. We have, accordingly, heard Mr. Sushi! Kumar Jain
  and Mr. Puneet Jain, advocates for the appellant and Mr. B.S.
E Chahar, Senior Advocate with Mrs. B. Sunita Rao and Mr.
  Mohd. Mannan for respondents at length and perused the
  records.

       13. The said question, as has been projected above,
F should not detain us long as the same has been considered in
  the matter of Direct Recruit Class If Engineering Officers'
  Association Vs. State of Maharashtra and Others reported in
  (1990) 2 SCC 715 by a Constitution Bench of this Court. After
  eloquent discussion with regard to inter se seniority of direct
G recruits and promotees, the same has been summed up in para
  47. The relevant portion of the said para applicable to the facts
  of this Appeal is reproduced hereinbelow:-

          "47. To sum up, we hold that:-

H         (A)Once an incumbent is appointed to a post according
  CH. NARAYANA RAO v. UNION OF INDIA & ORS.                    211
             [DEEPAK VERMA, J.]
    to rule, his seniority has to be coun~ed from the date of his     A
    appointment and not according to the date of his
    confirmation.

          The corollary of the above rule is that where the initial
    appointment is only ad hoc and not according-to rules and
                                                                      B
    made as a stop-gap arrangement, the officiation in such
    post cannot be taken into account for considering the
    seniority.

    (B) If the initial appointment is not made by following the
    procedure laid down by the rules but the appointee                C
    continues in the post uninterruptedly till the regularisation
    of his service in accordance with the rules, the period of
    officiating service will be counted."

     14. On the strength of the aforesaid Constitution Bench
                                                                      D
Judgment, Mr. Sushil Kumar Jain strenuously submitted before
us that clause (B) thereof should be invoked for the purpose of
grant of seniority to the Appellant.

     15. We have minutely examined the same but are unable
to accept the said contention as according to us corollary of         E
clause (A) of para 47 of the aforesaid judgment would be
applicable to the Appellant's case. It cannot be disputed that
the initial appointment of the Appellant was only ad-hoc and for
a temporary period and was also not in accordance with the
Rules of 1990 as he did not appear in the requisite test, which       F
is conducted by Staff Selection Commission, before his
appointment. The same was only a stop-gap arrangement.
Therefore, his officiation on such a post cannot be taken into
account for considering the seniority. Thus, in our considered
opinion neither clause (A) nor clause (8), as reproduced              G
hereinabove, would be applicable to the Appellant's case and
he cannot draw any advantages therefrom. On the other hand,
he would be squarely covered by the corollary appended to
clause (A).
                                                                      H
    212       SUPREME COURT REPORTS                 [2010) 11 S.C.R.


A       16. This judgment of Constitution Bench in Direct Recruit's
    case (supra) has been followed by three learned Judges of this
    Court in the case of State of West Bengal and others Vs.
    Aghore Nath Dey and Others reported in (1993) 3 SCC 371,
    authored by mo$t illustrious learned Judge of this Court -
8   Hon'ble Mr. Justice J.S. Verma (as he then was). After
    considering the scope and ratio decidendi of Direct Recruit's
    case (supra), it has been held in paras 24 and 25 in lucid and
    concise words as under:-

      "24. The question, therefore, is of the category which would
C be covered by conclusion (B) excluding therefrom the cases
  covered by the corollary in conclusion (A).

           In our opinion, the conclusion (B) was added to cover a
          different kind of situation, wherein the appointments are
D         otherwise regular, except for the deficiency of certain
          procedural requirements laid down by the rules. This is
          clear from the opening words of the conclusion (B), namely,
          'if the initial appointment is not made by following the
          procedure laid down by the 'rules' and the latter-expression
E         'till the regularisation of his service in accordance with the
          rules'. We read conclusion (B), and it must be so read to
          reconcile with conclusion (A), to cover the cases where the
          initial appointment is made, against an existing vacancy,
          not limited to a fixed period of time or purpose by the
          appointment order itself, and is made subject to the
F
          deficiency in the procedural requirements prescribed by
          the rules for adjudging suitability of the appointee for the
          post being cured at the time of regularisation, the
          a11pointee being eligible and qualified in every manner for
          a regular appointment on the date of initial appointment
G         in such cases. Decision about the nature of the
          appointment, for determining whether it falls in this
          category, has to be made on the basis of the terms of the
          initial appointment itself and the provisions in the rules. In
          such cases, the deficiency in the procedural requirements
H         laid down by the rules has to be cured at the first available
  CH. NARAYANA RAO v. UNION OF INDIA & ORS.                    213
             [DEEPAK VERMA, J.]
    opportunity, without any default of the employee, and the          A
    appointee must continue in the post uninterruptedly till the
    regularisation of his service, in accordance with the rules.
    In such cases, the appointee is not to blame for the
    deficiency in the procedural requirements under the rules
    at the time of his initial appointment, and the appointment        B
    not being limited to a fixed period of time is intended to
    be a regular appointment, subject to the remaining
    procedural requirements of the rules being fulfilled at the
    earliest. In such cases also, if there be any delay in curing
    the defects on account of any fault of the appointee, the          c
    appointee would not get the full benefit of the earlier period
    on account of his default, the benefit being confined only
    to the period for which he is not to blame. This category
    of cases is different from those covered by the corollary
    in conclusion (A) which relates to appointment only on ad          0
    hoc basis as a stopgap arrangement and not according
    to rules. It is, therefore, not correct to say, that the present
    cases can fall within the ambit of conclusion (8), even
    though they are squarely covered by the corollary in
    conclusion (A)."
                                                                       E
     17. According to us, corollary appended to clause (A) of
Direct Recruit's case (supra) and the aforesaid judgment in
Aghore Nath Dey's case squarely decide the issue.

     18. Reliance has also been placed by Mr. Sushil Kumar             F
Jain on yet another Constitution Bench Judgment of this Court
reported in (2000) 8 SCC 25 titled Rudra Kumar Sain and
Others Vs. Union of India and Ors. to distinguish the
terminology used in the case of O.P. Sing/a and another etc.
Vs. Union of India and Others reported in (1984) 4 SCC 450             G
namely, "Ad-hoc", "fortuitous" and "stop-gap". However, we are
not required to consider the same as it has already been dealt
with in Aghore Nath's case (supra) elaborately.

    19. In Singla's case (supra), the question was with regard
to seniority and promotion amongst direct recruits and                 H
    214         SUPREME COURT REPORTS               (201 OJ 11 S.C.R.


A   promotees. The said question is not directly in issue in this
    case. To the same effect is yet another earlier judgment of this
    Court is reported in (1986) 2 SCC 157 titled Narender Chadha
    and Others Vs. Union of India and Others, which also dealt
    only with the aforesaid requirement.
B
       20. In Narender Chadha's Case, benefit was directed to
  be granted to those Appellants as they were working on the said
  posts for more than 15 to 20 years, which is not the case in
  the present appeal. Apart from the above, admittedly the
C Appellant had not cleared the requisite examination/proficiency
  test as required under the Rules of 1990, as soon as he
  cleared the examination/proficiency test, he was regularised on
  the post. His regularisation from the date of initial appointment
  was impermissible and was rightly denied to him.

D        21. The view which has been taken by us hereinabove
    finds favour from a recent judgment of this Court reported in
    (2009) 4 SCC 170 titled, Union of India Vs. Dharam Pal &
    Ors. Perusal of the said judgment shows that the cases on
    which we have placed reliance have also been fully relied upon
E   by learned two Judges of this Court while dealing with the said
    case. Succinctly, it has been held in paragraph 25 and 27 as
    under:

          "25. It is, however, also well settled that where the initial
          appointment is only ad-hoc, not according to rules and
F         made as a stop-gap arrangement, the period of officiation
          in such post cannot be taken into account for considering
          the seniority.

          26.
G
          27. When an ad-hoc appointment is made, the same
          must be done in terms of the rules for all purposes. If the
          mandatory provisions of the rules had not been complied
          with, in terms of Direct Recruit Class II Engineering
          Officers' Association Vs. State of Maharashtra & Ors.
H
  CH. NARAYANA RAO v. UNION OF INDIA & ORS.                   215
             [DEEPAK VERMA, J.]
       (1990) 2 SCC 715, the period shall not be taken into          A
       consideration for the purpose of reckoning seniority.
       Furthermore, it is one thing to say that an appointment is
       made on an ad-hoc basis but it is another thing to say that
       inter~ se seniority would be determined on the basis laid
       down in another rule."                                        B

    22. We are, therefore, fortified in our reasoning as
adopted in the aforesaid Appeal.

     23. Thus, looking to the matter from all angles, we are of
the considered view that no relief can be granted to the             C
Appellant. His seniority has been correctly worked out only from
the date he had passed the Stenography Test as contemplated
under the Rules approved by Staff Selection Commission.

    24. Thus, the appeal being devoid of any merit and               0
substance is hereby dismissed but with no order to costs.

R.P.                                           Appeal dimissed.