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PETITIONER: UNION OF INDIA THROUGH CHANDIGARHADMINISTRATION (U.T.) CHAND

       Vs.

RESPONDENT: S.K. SHARMA, PROFESSOR OF CIVIL ENGINEERING PUNJABENGINEERIN

DATE OF JUDGMENT03/04/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAMASWAMY, K.

CITATION:  1992 AIR 1188            1992 SCR  (2) 459  1992 SCC  (2) 728        JT 1992 (2)   491  1992 SCALE  (1)775

ACT:      Service Law-Seniority-Fixation of-Appointment on ad hoc basis-Subsequent regularisation of appointment-Seniority  to be  reckoned from the date of regular appointment-Period  of ad hoc service rendered not to be counted.

HEADNOTE:      The  respondent was temporarily appointed as  Professor (Junior   Scale)  in  the  Department  of   Irrigation   and Hydraulics,  Punjab.   Subsequently,  he  was  selected   as Professor  (Junior  Scale)  on regular basis  in  the  Civil Engineering Department of the Punjab Engineering College. In view  of the fact that the post of professor (Junior  Scale) was  not vacant in the Civil Engineering Department, he  was adjusted  on  ad  hoc  basis  against  the  vacant  post  of Professor  (P.G. Course) in the Department of Irrigaion  and Hydraulics in his own grade from 28.6.1969 to 14.2.1971  and thereafter  from 15.2.1971 to 29.9.1973 against the post  of Professor   (Senior   Scale)  in   the   Civil   Engineering Department.   From  29.9.1973 he was selected  as  Professor (Senior Scale) on regular basis.      The respondent was not paid his pay and allowances  for the period for which he worked against the post of Professor (P.G.  Course)  or  (Senior  Scale) on  ad  hoc  basis  from 28.6.1969 to 29.9.1973.  He filed an application before  the Central Administrative Tribunal Chandigarh claiming pay  and allowances  for the aforesaid period which was allowed.   In accordance  with  the  judgment  of  the  Tribunal  he   was sanctioned  pay and allowances but the period for  which  he worked on ad hoc basis was not reckoned for the purposes  of seniority.   He  filed an application  before  the  Tribunal claiming  seniority on the post of Professor (Senior  Scale) counting  the  entire  period  of  his  continuous  ad   hoc appointment from 28.6.1969 to 29.9.1973.  The Tribunal  held that the respondent was given ad hoc appointment on the post of  Professor  (Senior  Scale)  from  1969  to  1973   after consultation with                                                        460 the  Union  Public  Service Commission and as  such  he  was entitled to claim his seniority from 28.6.1969.  Against the order of the Tribunal an appeal was filed in this Court.

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    Allowing the appeal and setting aside the order of  the Tribunal, this Court,      HELD : 1. The respondent was not entitled to claim  his seniority  on  the  post of Professor  (Senior  scale)  from 28.6.1969  and  the  appellants  had  rightly  counted   his seniority  from 29.9.1973 when he was regularly selected  in accordance with rules on the said post. [465C]      2.   The  order  of  the  Tribunal  granting  pay   and allowances  cannot  confer any right on  the  respondent  to claim seniority on the post of Professor (Senior Scale). The approval of U.P.S.C. for the continuation of the  respondent on the post of Professor (Senior scale) on ad hoc basis  was merely for the purpose of granting pay and allowances and it cannot  be  considered  as  a  regular  appointment  of  the respondent   on  the  post  of  Professor  (Senior   scale). Therefore,  the  Tribunal  was  totally  wrong  in  granting seniority  to  the  respondent  for the  period  of  ad  hoc appointment on the post of Professor (Senior scale). [463-H, 464A]      Narender  Chadha and Ors. v. Union of India  and  Ors., [1986] 2 S.C.C. 157, distinguished.      Massod Akhtar Khan and Ors. v. State of Madhya  Pradesh and Ors., [1990] 4 S.C.C. 24; D.N. Agrawal and Anr. v. State of  Madhya  Pradesh and Ors., [1990] 2  S.C.C.  553;  Direct Recruit Class II Engineering Officers’ Association v.  State of Maharashtra and Ors., [1990] 2 S.C.C. 715, relied on.      K.N. Mishra v. Union of India, A.T.R. (1986) 2 CAT 270, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appellate No. 3082 of 1988.      From the Judgment and Order dated 3.3.88 of the Central Administrative  Tribunal,  Chandigarh Bench,  Chandigarh  in O.A. No. 582/CH of 1986.      Kapil Sibal and Ranjit Kumar for the Appellants.                                                        461      J.S. Bajwa, Ms. Bharti Sharma and Ms. Rani Chhabra  for the Respondents.      The Judgment of the Court was delivered by      KASLIWAL,  J.  Union of India and  the  Home  Secretary Chandigarh Administration have filed this appeal by grant of special   leave  challenging  the  order  of   the   Central Administrative Tribunal, Chandigarh dated March 3, 1988. The Respondent,  Shri  S.K. Sharma was  appointed  initially  as Assistant  Professor on 24.9.1958 in the Punjab  Engineering College Chandigarh.  He was promoted as Associate  Professor on   23.10.1963.   The  respondent  was  then  promoted   as Professor (Junior Scale) on temporary and ad hoc basis for a period  of  six months in the department of  Irrigation  and Hydraulics  vide order dated 29.3.1969.  The respondent  was thereafter appointed as Professor (Junior scale) on  regular basis  through  U.P.S.C.  vide  order  dated  28.6.1969   on probation for a period of two years in the Civil Engineering Department of the College.  The respondent relinquished  the earlier charge of Professor (Junior Scale) of Irrigation and Hydraulics  and  assumed  the charge of his  new  post  with effect  from the same date.  However, since Dr. S.S.  Sharma was  holding  the post of Professor (Junior  Scale)  in  the Civil   Engineering  Department,  the  said  post  was   not available to the respondent Sh. S.K. Sharma and as such  the respondent  was adjusted on ad hoc basis against the  vacant post  of  Professor  (P.G.  Course)  in  the  Department  of

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Irrigation  and  Hydraulics  in his own  grade.   The  above interim arrangement was made on ad hoc basis till such  time any  regular selected candidate by the U.P.S.C.  joined  the post  of  Professor  (P.G.  Course)  in  the  Department  of Irrigation and Hydraulics.  This appointment on ad hoc basis continued  from 28.6.1969 to 14.2.1971 in the Department  of Irrigation  and Hydraulics and thereafter from 15.2.1971  to 29.9.1973  against the post of Professor (Senior  Scale)  in the  Civil  Engineering  Department.   The  respondent   was selected  for  appointment  on regular  basis  as  Professor (Senior  Scale)  w.e.f. 29.9.1973.  The respondent  was  not paid  his  pay and allowances for the period  for  which  he worked  against  the  post of  Professor  (P.G.  Course)  or (Senior  Scale)  on ad hoc basis.  The respondent  in  these circumstances  approached  the  Tribunal  and  was   granted arrears  of pay and allowances for the period  28.6.1986  to 29.9.1973 by the Judgment of the Tribunal dated 12.6.1986 in Application No. T-159 of 1986.                                                        462      Through  the respondent was allowed the arrears of  pay and  allowances for the post of Professor (Senior Scale)  in accordance  with the above Judgment of the Tribunal yet  the respondent  was  not  granted  seniority  on  the  post   of Professor  (Senior  Scale)  from  the date  of  his  ad  hoc appointment  on the said post from 28th June, 1969.  It  may however, be noted that the Chandigarh Administration  though sanctioned  the grant of pay of Professor (Senior Scale)  to the respondent for the period 28.6.1969 to 29.9.1973 when he was  selected  on regular basis for the  post  of  Professor (Senior Scale).  It is further important to note that though the  respondent had appeared for interview for the  post  of Professor  (P.G.  Course) in the Irrigation  and  Hydraulics Department of the College before the U.P.S.C. in  September, 1969  but  he  was rejected whereas one  Dr.  P.P.  Rao  was selected for the said post.  As Dr. P.P. Rao joined the post on  15.2.1971 in the Irrigation and  Hydraulics  Department, the respondent was adjusted in his own scale of pay  against the  vacant  post of Professor (Senior Scale) in  the  Civil Engineering Department on ad hoc basis as already  mentioned above.   The respondent himself in a letter  dated  1.7.1977 addressed to the Chief Commissioner Chandigarh has stated as under :           "It may be pointed out that Ad hoc appointment has          no effect on the seniority of staff members in  the          cadre  and no supersession is involved by  allowing          the  benefit of Pay for the period I was  appointed          against  higher post.  This is a  well  established          fact and have a large number of precedents itself".      The respondent in the above circumstances submitted  an application  before the Tribunal claiming his  seniority  on the post of Professor (Senior Scale) with effect from his ad hoc  appointment  dated 28.6.1969 which continued  till  his regular  selection  for  the said post  on  29.9.1973.   The Tribunal  vide its impugned order held that  the  respondent was  given  ad  hoc appointment on  the  post  of  Professor (Senior  Scale) from 1969 to 1973 after  prior  consultation with  the  U.P.S.C. and as such was entitled  to  claim  his seniority  from 28.6.1969.  The Tribunal  however,  observed that  the grant of this relief would affect the interest  of three/four persons of the College who had been shown  senior to  the  respondent  in  the  seniority  list  as  such  the appellants  (respondnets before the Tribunal) to revise  the seniority  list taking the above into account and  circulate the  draft  seniority list to all concerned  inviting  their objections, if any, before the seniority list was

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                                                      463 finalised.   This course was considered to be  necessary  as the affected persons had not been made party respondents  in the case before the Tribunal and it was necessary to give an opportunity  to  give their views in the  matter  and  there should be no violation of the principles of natural  justice and  equity.  Aggrieved against the aforesaid order  of  the Tribunal,  the  appellants have come before  this  Court  in appeal by grant of special leave.      We have heard learned counsel for the parties and  have thoroughly  perused the record.  The facts  mentioned  above are no longer in dispute and the only controversy is whether the  respondent  S.K.  Sharma is entitled to  his  claim  of seniority  on the post of Professor (Senior Scale)  counting the entire period of his continuous ad hoc appointment  from 28.6.1969  to  29.9.1973 or his seniority would  be  counted only from 29.9.1973 when he was regularly selected for  such post  after  interview  by U.P.S.C.  The  Tribunal  in  this regard  placed  reliance  on a decision  of  this  Court  in Narender Chandha and Ors. v. Union of India and Ors., [1986] 2 SCC 157.  The Tribunal also placed reliance on a  Judgment of  the  Principal  Bench  of  the  Central   Administrative Tribunal  in  the  case of K.N. Mishra v.  Union  of  India, reported in ATR (1986) 2 CAT P.270.      In our view the Tribunal was totally wrong in  granting seniority  to  the  respondent  for the  period  of  ad  hoc appointment on the post of Professor (Senior Scale), in  the facts  and  circumstances of the present  case  and  wrongly applied  the ratio of Narendra Chadha’s case  (supra).   The respondent  was  regularly  selected  as  Professor  (Junior Scale)  and in view of the fact that the aforesaid  post  in the  Civil  Engineering Department was not  vacant,  he  was adjusted  against  the post of Professor (P.G.  Course)  and subsequently against the post of Professor (Senior Scale) on ad hoc basis in his own grade.  It is no doubt correct  that the Tribunal in the earlier application No. T-159 of 1986 by order  dated  12.6.1986  had  allowed  arrears  of  pay  and allowances  for  the period 28.6.1969 to 29.9.1973  for  the post of Professor (Senior Scale) but that was allowed by the Tribunal  on  the ground that the  respondent  had  actually worked against the post of Professor (Senior Scale)   though on  ad hoc basis.  Such order of the Tribunal  granting  pay and allowances cannot confer any right on the respondent  to claim  seniority  also  on the  post  of  Professor  (Senior Scale).   The approval of U.P.S.C. for the  continuation  of the respondent on the post of Professor (Senior Scale) on ad hoc basis was merely for the purpose of granting pay                                                        464 and  allowances  and it cannot be considered  as  a  regular appointment  of  the  respondent on the  post  of  Professor (Senior Scale).  It may be further noted that the respondent was  selected  for the post of Professor (Junior  Scale)  on regular basis on 28.6.1969 and according to the extant rules three  years’  service  on  regular basis  on  the  post  of Professor (Junior Scale) was necessary for promotion to  the post  of Professor (Senior Scale).  Thus the respondent  was not  even  eligible for promotion to the post  of  Professor (Senior  Scale)  prior to June 28, 1972  till  he  completed three  years  of service on the post  of  Professor  (Junior Scale).  In view of this ground also the respondent was  not entitled  to  claim any seniority on the post  of  Professor (Senior  Scale)  from  28.9.1969  the date  of  his  ad  hoc appointment  on such post.  Narendra Chadha’s  case  (supra) does  not give any assistance at all to the  respondent  and the  Tribunal  was wrong in applying the ratio  of  Narendra

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Chadha’s  case  to the present case.  It was  held  by  this Court  in  Narendra Chadha’s case that persons  having  been allowed to function in higher posts for 15 to 20 years  with due deliberation it would be unjust to hold that there is no sort  of  claim  to such posts and  such  persons  could  be reverted unceremoniously or treated as persons not belonging to the service at all, particularly where the Government  is endowed  with the power to relax the rules to  avoid  unjust results.      In  Masood  Akhtar  Khan and Ors. v.  State  of  Madhya Pradesh  and Ors., [1990] 4 SCC 24 it was held that  if  the initial  appointment  is not made according  to  the  rules, subsequent  regularisation  of his service does not  entitle an  employee  to  the benefit  of  intervening  service  for seniority.   Seniority has to be reckoned from the  date  of regular  appointment and not to be counted from the date  of any stop-gap appointment.      In D.N. Agrawal and Anr. v. State of Madhya Pradesh and Ors., [1990] 2 SCC 553 it was held that regular  appointment at  later  date  cannot relate back to the date  of  ad  hoc appointment  and the employee is not entitled to  claim  the period   of  officiation  between  the  dates  of   ad   hoc appointment  and regular appointment for being  counted  for the  purpose  of seniority.  A Constitution  Bench  of  this Court  in  Direct  Recruit Class  II  Engineering  Officers’ Association v. State of Maharashtra and Others, [1990] 2 SCC 715 held as under :           "Once   an  incumbent  is  appointed  to  a   post          according to rule, his seniority has to be  counted          from the date of his appointment                                                        465          and not according to the date of his  confirmation.          Seniority cannot be determined on the sole test  of          confirmation,  for,  confirmation  is  one  of  the          inglorious  uncertainties  of  government   service          depending  neither on efficiency of  the  incumbent          nor  on the availability of substantive  vacancies.          The  principle  for  deciding  inter  se  seniority          conform to the principles of equality spelt out  by          Articles  14  and 16.  The corollary of  the  above          rule is that where the initial appointment is  only          ad  hoc  and not according to rules and made  as  a          stop-gap arrangement, the officiation in such  post          cannot  be taken into account for  considering  the          seniority".      In the circumstances mentioned above we are clearly  of the  view that the respondent was not entitled to claim  his seniority  on  the  post of Professor  (Senior  Scale)  from 28.9.1969  and  the  appellants  had  rightly  counted   his seniority  from 29.9.1973 when he was regularly selected  in accordance  with the rules on the said post.  In the  result we allow this appeal, set aside the Judgment of the Tribunal dated 3.3.1988.  In the circumstances of the case we  direct no order as to costs. T.N.A.                                        Appeal allowed.                                                        466