W.P.(C)/1662/2007 of DR.RANJAN CHANDRA Vs MINISTRY OF HEALTH & FAMILY WE

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 12.09.2013

W.P.(C) 1662/2007

DR. RANJAN CHANDRA..... PetitionerThrough : Sh. Nilansh Gaur, Advocate.

versus

MINISTRY OF HEALTH & FAMILY WELFARE

..... RespondentThrough : Sh. R.V. Sinha, Sh. R.N. Singhand Sh. A.S. Singh, Advocates.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

1.The petitioner is aggrieved by an order of the CentralAdministrative Tribunal (CAT) dated 30.10.2006, dismissing hisReview Application, R.A. No. 153/2006. The petitioner had claimeddirections that the period of his ad-hoc service, i.e. effective from15.09.1993 till he was appointed to the post of Specialist Grade-II(Radio Diagnosis) with effect from 03.07.1998 after selection throughthe regular channel, should be treated as regular.

2.The petitioner responded to an advertisement issued sometimein June 1993 in the Employment News. The respondents/CentralGovernment,actingthroughtheAndamanandNicobarAdministrative Secretariat stated in the advertisement (carried in the

Employment News) that the selected candidates shall be appointedagainst Specialist Grade-II post purely on temporary ad-hoc basiswith the approval of Ministry of Health and Family Welfare. It is notin dispute that the petitioner was appointed on ad-hoc basis witheffect from 15.09.1993 for one year; the Office Memorandum in thatregard, issued on 10.09.1993 inter alia stated that:

“No.A.12026/9/93-CHS IVGovernment of IndiaMinistry of Health & Family Welfare(Department of Health)

New Delhi, dated the 10[th]Sept, 93

OFFICE MEMORANDUM

SUBJECT: Ad-hoc appointment to the post of Specialistin Radio-diagnosis-Dr.Ranjan Chandra – regd.

XXXXXX

v)The period of ad-hoc appointment will not bestowon his/her any claim or right for regular appointment inthe Central Health Service and that the period of ad-hocappointment rendered by him/her will not count for thepurpose of seniority and for eligibility for promotion,confirmation etc.

XXXXXXXXXXXX”

3.The petitioner’s period of ad-hoc service was continued fromtime to time by various orders dated 16.09.1994, 27.04.1995,19.10.1995, 04.12.1996 and 13.08.1997. Subsequently, pursuant to anadvertisement issued by the Union Public Service Commission

(UPSC), inviting applications from amongst eligible candidates forthe post of Specialist Grade-II Radio-Diagnosis, the petitioner hadapplied for the regular vacancy; he successfully participated in therecruitment process and later was duly appointed with effect from03.07.1998.

4.In the light of the above facts and circumstances, the petitionerapproached the CAT for the direction that the period spent by him onad-hoc employment between 1993 and 1998 should be treated asregular employment. By the impugned order, the CAT dismissed theapplication. The petitioner had relied upon previous decision of theCAT dated 27.05.1999 in O.A. 1315/1993 in which ad-hoc service ofthat applicant from 1986 till the period of regular selection by theUPSC was directed to be treated as regular employment.

5.It was argued by learned counsel Sh. Nilansh Gaur that theCAT fell into error in holding that the period of service between 1993and 1998 spent by the petitioner was fortuitous and ad-hoc. It wassubmitted that the offer of appointment to the post was on the basis ofa regular existing vacancy which remained unfilled despite severalprevious efforts on the part of the administration. The Andaman andNicobar administration, therefore, advertised for filling the post onad-hoc and temporary basis. Elaborating further, learned counselargued that the petitioner was fully qualified to hold the post; herespondedtopublicadvertisementandhiscandidatureandperformance in the selection process was the basis of appointment.Thus all the prerequisites spelt-out or the standards required byArticles 14 and 16 had been fulfilled. In these circumstances, to denyor refuse to treat the ad-hoc services as regular was unfair. Learnedcounsel relies on the decision of the CAT, Dr. Rakesh Verma v. UOI[O.A. No.1315/1993] and also cited the Constitutional Bench ruling inDirect Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra1990 (2) SCC 715, especially propositions in paragraphs 47A and B.He emphasised that the corollary of regularization in service inaccordance with rules after the previous spell of ad-hoc serviceentitled the employee to count such ad-hoc service as regular forseniority and all other service benefits. Learned counsel also reliedupon the decision reported as State of West Bengal and Ors. v. AghoreNath Dey and Ors. 1993 (3) SCC 371 where the previous ruling ofConstitution Bench had been relied upon. He further relied upon thedecision of the subsequent Constitution Bench in Rudra Kumar Sainand Ors. v. UOI and Anr. 2000 (8) SCC 25 and lastly upon the recentjudgment in Debabrata Dash and Anr. v. Jatindra Prasad Das andOrs. 2013 (3) SCC 658. Lastly it was argued that not consulting theUPSC while selecting and appointing the petitioner on ad-hoc basis in1993 in this case amounted to mere procedural infirmity orirregularity and not matter of substance that would come in way oftreating previous ad-hoc service as regular for all service purposes.6.Learned counsel for the respondent, i.e. Central Governmentsubmitted that the treatment meted to Dr. Rakesh Verma (supra)could not have been the basis for declaration that the previous spellof service – which was purely ad-hoc, had to be treated as regular.Learned counsel emphasized upon the fact that the advertisementissued in 1993 clearly indicated that the post was being filled on ad-

hoc and temporary basis; he also relied upon Clause (v) of the offer ofappointment dated 10.09.1993 issued to the petitioner where similarcondition was attached at the time of appointment. Learned counselalso highlighted that the period of ad-hoc appointment was extendedfrom time to time till eventually the petitioner competed for the postand was selected pursuant to UPSC advertisement in 1998. Learnedcounsel submitted that the rulings of the Supreme Court as well as theDivision Benches of this Court are consistent on this aspect that bothpropositions and in para 47 of the Direct Recruit Class II Engg.Officers’ Assn. (supra) judgment have to be read together. Learnedcounsel submitted that the judgment in UOI v. Avinash Mishra ILR(2008) Del 1119 rendered by another Division Bench clearly pointsout that the period of service spent by public employee till he isregularly selected or recruited by the UPSC shall be deemed irregularand no benefit can accrue. It was submitted that the facts in that casewere close, if not entirely identical to the circumstances of this case inthat the rules required consultation with UPSC before the post itselfcan be filled. Learned counsel also relied upon two other DivisionBench judgments – The Principal, University College of MedicalScience v. Vinod Kumar and Ors. 2006 (5) AD (Delhi) 360 andAdarsh Chaudhary v. UOI 2002 (7) AD (Delhi) 465. It was statedthat in addition, Aghore Nath Dey (supra) and Direct Recruit Class IIEngg. Officers’ Assn. (supra) have been in turn interpreted andapplied by the latter Supreme Court in V.P. Shrivastava and Ors. v.State of M.P. and Ors. 1996 (7) SCC 759; UOI and Ors. v. SatishChandra Mathur 2001 (10) SCC 185 and in Swapan Kumar Pal and

Ors. v. Samitabhar Chiakraborty and Ors. 2001 (5) SCC 581.

7.From the above discussion, there is practically no dispute aboutthe facts of the case of which the salient features are as follows:

(i).The petitioner responded pursuant to public advertisementissued by the Andaman and Nicobar Administration in 1993, invitingapplication to the post of Specialist Grade-II (Radio-Diagnosis);

(ii).The advertisement itself stated that the appointment was to bemade on purely ad-hoc and temporary basis;

(iii).The petitioner was selected to the post;(iv).The appointment letter was issued to the petitioner 10.09.1993,which also indicated by clause (v) that the appointment was purelyad-hoc and temporary.

(v).Afreshadvertisementwasissuedin1997-98invitingapplications for filling the said post on regular basis, this time by theagency prescribed under the rules – UPSC.(vi).The petitioner responded and participated in the selectionprocess and was eventually appointed to the said post on regular basiswith effect from 03.07.1998.

8.The decision in Aghore Nath Dey (supra) would indicate thatthe Supreme Court on the first occasion presented to it applied theDirect Recruit Class II Engg. Officers’ Assn. (supra) held that thepropositions and had to be read together while applying the lawin Direct Recruit Class II Engg. Officers’ Assn. (supra). Thus, if theinitial assumption was contrary to the rules, proposition could notbe availed of by the employee. Later rulings have clarified further thatthe initial appointment, if contrary to the rules, would be deemed ad-

hoc even if the concerned or prescribed agency, such as UPSC is notconsulted. This is evident from Swapan Kumar Pal and Ors. (supra)and two Division Bench rulings in Adarsh Chaudhary (supra) andAvinash Mishra (supra). The petitioner’s attempt to state that theomission to consult the UPSC was mere procedural infirmitycannot, therefore, be accepted.

9.As far as the decision relied upon in Rudra Kumar Sain andOrs. (supra) case is concerned, this Court notices that the disputethere was of usual kind concerning the seniority as between twoclasses of employees – direct recruits and promotees. The service inquestion was Delhi Judicial Service (DJS) and Delhi Higher JudicialService(DHJS).TheConstitutionBenchruledthatinthecircumstances of the case where the officers had been promoted in themanner prescribed by rulings even though the promotion exceeded thequota prescribed by them, such position would not deny them ofseniority on the basis of prior service. Similarly in Debabrata Dashand Anr. (supra), para 44 clarifies that the service rendered by aJudicial Officer in Fast Track Court would not deprive him of thepromotion as and when the vacancies in his parent cadre occur. Thatjudgment does not assist the petitioner at all.

10.The Court is further of the opinion that reliance upon theTribunal’s previous ruling in Dr. Rakesh Verma (supra) cannot be ofany assistance. In this regard it needs to be emphasized that wrongdecision as Dr. Rakesh Verma (supra) judgment appears to be, cannotbe basis for an officer similarly situated but equally disentitled, toclaim parity on the basis of Article 14.

11.In view of the above conclusions, the Court is of the opinionthat the petition lacks in merit. It is accordingly dismissed.

S. RAVINDRA BHAT(JUDGE)

SEPTEMBER 12, 2013‘ajk’

NAJMI WAZIRI(JUDGE)