Union of India and others v. C. Sreekumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **OP (CAT).No.73 OF 2018** **AGAINST THE ORDER IN OA 478/2014 DATED 11-11-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, (DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES) KRISHI BHAVAN, NEW DELHI- 110 001** - **2 THE DIRECTOR, NATIONAL INSTITUTE OF FISHERIES,POST HARVEST TECHNOLOGY & TRAINING (NIFPHATT)P.B NO. 1801, KOCHI-682 016.** - **3 THE ACCOUNTS OFFICER OFFICE OF THE DIRECTOR, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLOGY & TRAINING (NIFPHATT)P.B NO. 1801,KOCHI-682 016.** - **4 THE DIRECTOR GENERAL FISHERY SURVEY OF INDIA, BOTAWALA CHAMBERS SIR P.M ROAD, FORT, MUMBAI-400 001.** **BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC** **RESPONDENT/S:** **C.SREEKUMAR** O.P.(CAT) No. 73 of 2018 -2- **S/O. N.V CHELLAPPAN UNNITHAN, PROCESSING-CUMQUALITY ASSURANCE SUPERVISOR,NATIONAL INSTITUTE OF FISHERIES,POST HARVEST TECHNOLOGY & TRAINING (NIFPHATT)KOCHI-682 016, RESIDING AT: NO.C-10, NIFPHATT QUARTERS, PULLEPPADY, KOCHI-682 018.** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.KALA T.GOPI** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 16-12-** **2019, THE COURT ON 21-01-2020 DELIVERED THE FOLLOWING:** O.P.(CAT) No. 73 of 2018 -3- ## **JUDGMENT** Dated this the 21[st] day of January, 2020 ## **K.VINOD CHANDRAN, J.** The original petition is filed against the grant of first financial up-gradation under the Assured Career Progression Scheme (ACPS) counting the adhoc service of the applicant. We refer to the parties and the documents as are available in the original application. 2. The applicant was appointed as a Scientific Assistant on an adhoc basis for various spells, evidenced by Annexures A3 and A4 series, the first commencing from 25.5.1994. The applicant claims the period from 3.10.1995, when he was appointed again on adhoc basis, but against a clear vacancy as evidenced from Annexure A6, for the purpose of granting ACPS. The first up-gradation according to him falls due on 3.10.2007, on completion of 12 years. O.P.(CAT) No. 73 of 2018 -4- The Tribunal found that though adhoc service cannot be counted for the purpose of ACPS/MACPS (Modified Assured Career Progression Scheme), the temporary service which was regularised cannot be excluded from reckoning the total service. 3. The learned Standing Counsel Sri.T.V.Vinu would contend that the Tribunal had misguided itself in drawing a distinction between adhoc and temporary service especially when the scheme provided for regular service of 12 years and 24 years, in which an employee stagnates, for the purpose of financial up-gradation. The regular service as defined in the scheme also had to be interpreted, as capable of being reckoned as eligibility service counted for regular promotion in terms of regular recruitment/service rules. The learned CGSC, would also rely on a Division Bench decision of this Court reported in _**Union of India and others v. P.J.**_ O.P.(CAT) No. 73 of 2018 -5- ## . _**Mary [2011 (1) KHC 861]**_ 4. The learned Counsel for the applicant/respondent Sri.T.C.Govindaswami, however, took us through the various orders starting from Annexure A6, which would indicate that the applicant had been appointed temporarily, in a vacancy which arose on deputation/promotion and was continued uninterruptedly till his regularisation. His regularisation was also in a vacancy arising on promotion, which promotion was subsequently given retrospective effect from 15.7.1997. At least from that date, the applicant's appointment should be treated as regular; is the specific submission made by the learned Counsel. The learned Counsel would rely on the judgment of the Madras High Court in _**W.P.(C) No.24104 of 2011; the Director v. P. Karuppiah [unreported]**_ to contend that similar orders passed by the Tribunal at Chennai was affirmed by the Madras High Court. The Department is also O.P.(CAT) No. 73 of 2018 -6- said to have accepted the said judgment and granted relief to the applicants therein. 5. As far as the decision relied on, we see that the Madras High Court has considered the ACPS on which claim is raised here too. The Madras High Court had specifically referred to another Division Bench decision of that Court, which relied on _**Union of India and others v. M.Mathivanan [AIR 2006 SC 2326].**_ Certain portions of the referred decision was extracted to find that the clarification by the Department as to _adhoc_ service not being counted for ACPS/MACPS cannot be sustained in the teeth of the decision of the Honourable Supreme Court. In _**Mathivanan**_ , a person was appointed as a Postal Assistant and later was recruited as a Warrant Officer to the establishment of the Regular Army from 30.09.1983. However, the terms of appointment specifically showed that the appointment is on purely adhoc O.P.(CAT) No. 73 of 2018 -7- and temporary basis and the candidate will have no claim for regular absorption in preference to his seniors in the RTP list of that Division. The claim therein was with respect to the time bound promotion to the next higher grade on completion of 16 and 26 years; the first of which the employee claimed from the date of his appointment in the year 1983. The Honourable Supreme Court, after reading _so_ the rules regarding Time Bound Promotion, found that “ _far as placing 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' and 'D' must have completed "sixteen years of service in that Grade." The said paragraph, nowhere uses the connotation 'regular' service._ ” It is on such finding alone that the Supreme Court allowed the claim in _**Mathivanan**_ , especially, looking at the warrant issued by the President of India, which also absorbed the O.P.(CAT) No. 73 of 2018 -8- petitioner, in the establishment of the regular army. Here the scheme specifically defines regular service. 6. The Division Bench also referred to the decisions in _**Dwijen Chandra Sarkar and another v. Union of India and others [ (1999) 2 SCC 119]**_ and _**Union of India and another v. V. N. Bhat [(2003) 8 SCC 714]**_ to find that the ACPS could be granted counting the adhoc period. Both the above referred cases considered the question of time bound promotion in the context of a transfer made from one department to another, one in public interest and protecting past service for all purpose and the other a voluntary transfer. The provision for stagnating in the same grade, for the purpose of time bound promotion, it was held, did not confine the consideration to the period spent in the transferee even when the transfer was department, voluntary, though in the later case there would be loss of O.P.(CAT) No. 73 of 2018 -9- seniority. We find the said decisions to be in a totally different context not applicable to the instant case. We cannot, with due respect, agree with the principles enunciated in the Division Bench decisions of the Madras High Court on the specific language employed in the ACPS. 7. We are also bound by the decision of a Division Bench of this Court in _**P.J. Mary**_ , where the question was identical, as to counting of adhoc service for the purpose of ACPS, which is not reckoned as eligible service, to be promoted. The Division Bench specifically found from the terms of the ACPS that the regular service for its purpose, has to be interpreted to mean the eligibility service counted for regular promotion in terms of regular recruitment/service rules. It was categorically found that for the purpose of financial up-gardation under the ACPS, there can be no reckoning of adhoc service. We perfectly agree O.P.(CAT) No. 73 of 2018 -10- with the finding since, if an adhoc employee is not entitled to count his adhoc service for promotion; then there arises no question of stagnation, on which factum is anchored the very scheme of financial up-gradation. 8. The facts of this case has to be examined on the basis of law as declared above. We first look at Annexure A6; the date from which the applicant claims regular service for the purpose of ACPS. Annexure A6 dated 17.10.1995 appointed the applicant on temporary capacity against a vacancy which arose due to the 'deputation of a Deputy Director as Director, consequent promotion of Dr.Varghese P.Oomen as Deputy Director and Dr. P.Premalatha as fisheries Officer. It is to the post of Scientific Assistant, vacated by Dr. Premalatha that the applicant was temporarily appointed. The terms of appointment very clearly indicates that there was no vacancy available and it was only on the basis of the O.P.(CAT) No. 73 of 2018 -11- deputation that the consequent promotions were made which would have to be reversed on the deputation being cancelled and himself rejoining duty, which has the effect of cancellation of the resultant promotions too, thereby throwing out the applicant from service. It has to be accepted that the persons who were deputed and promoted retained their lien in the post from which they were deputed or promoted on an adhoc basis. There can hence be no treatment of adhoc period as eligible service for the purpose of promotion and hence there could be no reckoning of that period for time-bound up-gradation. 9. Further contention taken is that when the applicant was regularly appointed as per Annexure A8, he was appointed in the regular vacancy of Dr.P.Premaltha, whose promotion was later given effect from 15.07.1997 as can be seen from Annexure A9. The applicant was granted O.P.(CAT) No. 73 of 2018 -12- regular appointment with effect from 1.6.1998 and the first up-gradation was granted under MACPS (Modified ACPS), as on 1.9.2010, counting the service from 1.6.1998. The ACP Scheme was discontinued on implementation of Modified ACP Scheme from 01.09.2008. The alternative claim is for ACPS in the year 2007 counting service from 15.07.1997, the date of retrospective effect granted to Dr. Premalatha. The alternative contention is also based on a declaration of probation with respect to the incumbent who was promoted, whose vacancy, the applicant occupied. Annexure A9 order itself is on 5.12.1998 and we are not made aware of the facts which led to such retrospective declaration of probation being granted. It is also very evident that the applicant had not chosen to seek earlier date of regularisation, despite the incumbent whose vacancy the applicant filled had been granted declaration of probation from an earlier date. The O.P.(CAT) No. 73 of 2018 -13- said claim also has to be rejected. In such circumstances, we do not think that the Tribunal was right in having permitted the temporary service to be reckoned for the purpose of ACPS. We, hence, set aside the order of the Tribunal and allow the original petition. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN JUDGE** Scl/22. 01.2020 xxx O.P.(CAT) No. 73 of 2018 -14- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00478 DATED 30-06-2014 FILED BY THE RESPONDENTS BEFORE THE CAT,ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO. 180/00478/2014 DATED 20-02-2016 FILED BY THE PETITIONERS. EXHIBIT P3 TRUE COPY OF MISCELLANEOUS APPLICATION IN MA NO. 679 OF 2014 FOR CONDONATION IN MA NO.679 OF 2014 FOR CONDONATION OF DELAY OF 807 DAYS IN FILING THE COMPANION OA EXHIBIT P4 TRUE COPY OF THE OBJECTION IN MISCELLANEOUS APPLICATION NO. 679 OF 2014 DATED 12-12-2014. EXHIBIT P5 TRUE COPY OF THE REJOINDER IN OA NO. 180/00478/2014 DATED 14-04-2015 FILED BY THE RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER IN OA NO. 180/00478/2014 DATED 11-11-2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A1 TRUE COPY OF MEMO BEARING NO.A1/72/2006/849 DATED 18/04/2011 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A2 TRUE COPY OF MEMORANDUM BEARING NO.A1/27/93/1642 DATED 29/04/1994 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A3 TRUE COPY OF MEMORANDUM BEARING NO.A1/27/93/2075 DATED 25/05/1994 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A4 TRUE COPIES OF VARIOUS ORDERS ISSUED BY THE 2ND RESPONDENT EXTENDING THE AD-HOC APPOINTMENT OF THE APPLICANT FROM TIME TO** -15- ## O.P.(CAT) No. 73 of 2018 ## **TIME.** - **ANNEXURE A5 TRUE COPY OF MEMORANDUM BEARING NO.A1-27/93 DATED 05/06/1995 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE A6 TRUE COPY OF OFFICE ORDER BEARING NO.155/95 DATED 17/10/1995 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE A7 TRUE COPY OF OFFICE ORDER BEARING NO.60/96 DATED 08/04/1996 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE A8 TRUE COPY OF OFFICE ORDER BEARING NO.21/2001 DATED 12/02/2001 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE A9 TRUE COPY OF OFFICE ORDER BEARING NO.232/98 DATED 05/12/1998 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE A10 TRUE COPY OF ORDER BEARING NO.5-16/2002FY.(T5)(II) DATED 19/05/2005 ISSUED ON BEHALF OF THE 1ST RESPONDENT.** - **ANNEXURE A11 TRUE COPY OF REPRESENTATION DATED 27/04/2007 ADDRESSED TO THE 2ND RESPONDENT.** - **ANNEXURE A12 TRUE COPY OF ORDER BEARING NO. 12/2008FY.ADMN. DATED 01/12/2008, ISSUED ON BEHALF OF THE 1ST RESPONDENT.** - **ANNEXURE A13 TRUE COPY OF THE PRESENTATION DATED 25/06/2009 ADDRESSED TO THE 2ND RESPONDENT.** - **ANNEXURE A14 TRUE COPY OF OFFICE ORDER BEARING NO.40/2010 DATED 09/09/2010 ISSUED ON BEHALF OF THE 2ND RESPONDENT.** - **ANNEXURE A15 TRUE COPY OF REPRESENTATION DATED 04/10/2010 ADDRESSED TO THE 2ND RESPONDENT.** -16- ## O.P.(CAT) No. 73 of 2018 **ANNEXURE A16 TRUE COPY OF REPRESENTATION DATED 06/07/2011, ADDRESSED TO THE 2ND RESPONDENT. ANNEXURE A17 TRUE COPY OF REPRESENTATION DATED 05/11/2012 ADDRESSED TO THE 2ND RESPONDENT. ANNEXURE A18 TRUE COPY OF REPRESENTATION DATED 12/11/2013 ADDRESSED T0 THE 1ST RESPONDENT. ANNEXURE A19 TRUE COPY OF GOVERNMENT INDIA DEPARTMENT OF PERSONNEL AND TRAINING OM BEARING NO. 18011/1/86-EST(D) DATED 28/03/1988. ANNEXURE R1 TRUE COPY OF THE LETTER NO.5-5/2010FY.ADMN. DATED 17/03/2011. ANNEXURE R2 TRUE COPY OF THE LETTER NO.A1/12/2009/2391 DATED 05/08/2011. ANNEXURE A20 TRUE COPY OF THE ORDER OF THE HON'BLE CAT, CHENNAI BENCH IN OA NO.105/2010 DATED 28/04/2011. ANNEXURE A21 TRUE COPY OF THE OFFICE ORDER BEARING NO.14-3/2010 ADM. DATED 14/08/2014 ISSUED BY THE DIRECTOR OF THE CENTRAL INSTITUTE OF FISHERIES NAUTICAL AND ENGINEERING TRAINING, FINE ARTS AVENUE, KOCHI.**