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PETITIONER: PUSHPA AGGARWAL

       Vs.

RESPONDENT: U.P.S.C.  & ORS.

DATE OF JUDGMENT:       20/04/1999

BENCH: S.Rajendra Babu, S.N. Phukan.

JUDGMENT:

S.N.  PHUKAN, J

       This appeal is directed  against  the  judgment  and order  dated  16th  December,  1994  passed  by  the Central Administrative Tribunal, Principal Bench,New Delhi  in  O.A. No.  1036 of 1990.

       For the purpose, of appreciating the points urged in this appeal we may briefly state the facts.

       The appellant herein  was  appointed  as  Mechanical Operator  on  19.03.1965  by  the  respondents and from "the impugned judgment  we  rind  that  her  appointment  was  on probation  for a period of two years and further this period was neither extended  nor  her  appointment  was  confirmed. However,  she was declared quasi permanent w.e.f 19.03.19GS. On 30.05.78 she submitted a letter  of  resignation  on  the ground of  alleged  harassment  but  on.   the next day i.e. 31.05.7.8 she submitted another letter for withdrawal of the resignation.   However,   the   respondents   accepted   her resignation and informed her accordingly.

       On being dissatisfied the  appellant  filed  a  writ petition   before   the   High  Court  of  Delhi  which  was transferred to  Central  Administrative   Tribunal.      The Tribunal  allowed  her petition and directed the respondents to allow her to rejoin her service  with  all  consequential benefits  and accordingly on 16.05.86 she rejoined her post. On the basis of Review Departmental Promotion Committee held on June, 1979  her  appointment  was  made  substantive  as Mechanical Operator w.e.f.01.07.75 and in the seniority list she  was placed senior to Kum.Indra Devi.Thereafter) she was appointed to officiate as  Technical  Assistant  (Hollarith) which is  higher  post  w.e.f.    29.04.83 from the date her junior was made senior  in  the  post.    From  03.03.86  to 31.07.86  she was given the benefit of adhoc appointment and her seniority was also determined above the said Kum.  Indra Devi w.e.f.  29.4.83.  The appellant allegation  before  the Tribunal was  that she was appointed along with Smt.  Versha Malhotra, Shri P.S, Jain and Smt.  Malti Duggal,  therefore, she should  be  confirmed as Mechanical Operator w.w.f.  the date her above named batchmate  were  confirmed  Instead  of confirming her   from  01.07.75.    She  grayed  before  the Tribunal that the other dated 12.12.88 confirming her in the post from 01.07.75 be quashed and declaring her entitled  to be confirmed  as  Mechanical  Operator w.e.f.  the date from

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which her immediate  junior  had  been  confirmed  with  all consequential benefits.

       The  respondents  opposed the application before the Tribunal and stated that mechanical Operators were confirmed in the grade  on  the  recommendation  of  the  Departmental Promotion Committee  held  in  1974  and  1977.    After the resignation and relieving of the appellant,  2  Departmental Promotion  Committees  were held for substantive appointment to the grade of Mechanical Operator and on the basis of  the assessment  of the record of appellant she was not found fit for substantive appointment, Another Departmental  Promotion Committee  which  was held in December, 1977 the case of the appellant could not be considered as she was not in  service and,  therefore,  a  Review Departmental Promotion Committee was held in November, 1988 but she  was  found  unfit.    In June,  1979  the appellant was given substantive appointment as Mechanical Operator and she was placed above Kum.   Indra Devi   who  was  appointed  substantively  to  the  post  of Mechanical Operator w.e.f.  01.07,75 on  the  basis  of  the recommendation of-the next Departmental Promotion Committee.

       The tribunal took note  of  the  fact  that  as  the appellant  was  only  a  temporary  employee  as  Mechanical Operator  and  her   performance   was   not   satisfactory, therefore,  rightly stated that she should not be confirmed. The tribunal also noted adverse remarks made in  the  annual confidential   reports   and  the  disciplinary  action  and punishment imposed  on   the   appellant.      Taking   into

consideration  all  the  facts  the application filed by the appellant was dismissed,

       We have heard learned counsel Shri K.V, Rohtagi  for the appellant and Shri Rajiv Nanda for the respondent,

       The  appellant as stated above joined on the post of Mechanical Operator on 19.03.65 and she was  declared  quasi permanent w.e.f  19.04.68.    Forï  promotion to the post of Technical Assistant (Holl) as per the recruitment rules, 75% of the posts to be filled up by promotion on  the  basis  of seniority  cum  fitness and 25% on the basis of departmental test.   As  the  appellant  was  appointed  and   Mechanical Operator  she  would  come under the category of 75% for the purpose of promotion to the next higher post.

       In  the  year  1974,  a  disciplinary proceeding was started under Rule 16 of the CCS(CCA)  Rules,  1965  against the  appellant  for  disobedience  of orders of her superior officers and having  acted  in  a  manner  unbecoming  of  a government servant.    She  was  found guilty and penalty of withholding of one increment was imposed.  In the year  1975 another  disciplinary  proceeding  was initiated against the appellant and in 1976 against she was warned as a result  of the disciplinary proceedings.  In December, 1976 as a result of  disciplinary  punishment of withholding of one increment vas imposed on the appellant.  In 1978 again a  disciplinary proceeding was initiated against the appellant.

       Adverse  remarks  for  the  period ending 31 12.196 were conveyed to her that her work  and  behaviour  was  not found  satisfactory  In  1969 she was warned that she had to improve her attendance and work.  In 1976  adverse  remarks, for  the  year 1975 that she was extremely indisciplined and insubordinate to all her  superiors,  were  communicated  to

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her.   Her  work was also very poor due to her carelessness. Thus it appears apart from the adverse remarks recorded in , the years 1965,1968 and  1975  in  her  annual  confidential reports,  punishments  were  also  awarded after drawing the proceedings in the year 1974, 1^76 and 1977.

       In  view  of  the  above  remarks  in   her   annual confidential  reports and punishments imposed as a result of the proceedings the tribunal refused  to  interfere  in  the matter.   We  hold  that  action  of  the tribunal cannot be faulted.

       But tribunal had recorded  after  looking  into  the relevant  file  of the appellant that her appointment was on probation for  a  period  of  2  years  and  it  was  purely temporary.   The  tribunal  also  noted  that she made quasi permanent after  3  years  and  held  that  merely  she  was declared  quasi  permanent  will  not  ipso  facto  make her appointment to  substantive  post.    We  quote  below  this finding of the tribunal:

       "Though  there  is  nothing  on  record   that   the probation  period  at  any  time  extended  yet  there is no document  available  which  goes  to  show  that   she   has successfully completed the period of probation."

       As stated above though the appellant  was  appointed in  the  year 1965 and made quasi permanent in the year 1968 but the respondents neither extended the period of probation nor terminated  her  services.      Adverse   remarks   were communicated  to  the appellant regarding her unsatisfactory work and behaviour and also in the year 1969 adverse remarks for the year ending 31  12.1968 were communicated  and  she was asked  to  improve her attendance.  Nothing was recorded in her annual confidential reports from 1968 to 1976.    The first departmental proceeding was started in the year 1974,

       Under   normal   circumstances,   the  case  of  the appellant for making permanent should have  been  considered at  the  end  of  2  years  of  probation or if work was not satisfactory   probation   should   have   been    extended. Unfortunately,  there  are no rules of Mechanical Operators, For no fault of appellant her case was  not  considered  for the above period and for the first time it was considered by the  Departmental  Promotion  Committee in the year 1974 and again after she was reappointed as per the direction of  the tribunal.

       We  are,  therefore, of the opinion that the case of the appellant should have been considered immediately  after completion of period of probation and as it was not done the appellant is  entitled  to some relief.  We are of the view that in the grade of Mechanical Operator her seniority shall be restored to below the persons who were  immediate  senior to the appellant and direct accordingly.

       Regarding promotion of the  appellant  to  the  next higher  post the impugned order cannot be faulted in view of the various adverse remarks recorded against  the  appellant and  the punishments imposed as a result of the departmental proceedings.  Therefore,  her  seniority  "bo  the  post  of Technical  Assistant  shall  be  as  fixed by the respondent which is held to be valid by the tribunal.  We make it  very clear  that  in view of the directions regarding fixation of seniority of the  appellant  to  "the  grade  of  Mechanical

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Operator  she  shall  be  entitled  to all the consequential benefits in that grade but shall not be  entitled  in  claim any  benefit  to  the  next  higher  post  namely  Technical Assistant,

       In  the  result the appeal is partly allowed and the order of the tribunal stands modified in terms of the  above order.  The parties bear their own costs.