High Court Kerala High Court

Maruti Bhoyi vs R.Venkitaraman on 2 July, 2008

Kerala High Court
Maruti Bhoyi vs R.Venkitaraman on 2 July, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 18926 of 2004(S)


1. MARUTI BHOYI,
                      ...  Petitioner

                        Vs



1. R.VENKITARAMAN,
                       ...       Respondent

2. N.SATHEESAN,

3. V.R.SUBRAMANIAN,

4. CENTRAL BOARD OF TRUSTEES EMPLOYEES'

5. THE CENTRAL PROVIDENT FUND COMMISSIONER,

6. THE REGIONAL PROVIDENT FUND ORGANISATION

7. SHRI CHANDRAMOULI CHAKROBORTHY,

8. SHRI NARAYANA KAMMA,

9. SMT.ABRAHAM KAVITHA,

                For Petitioner  :SRI.RAJESH THOMAS

                For Respondent  :SRI.N.N. SUGUNAPALAN, SC, P.F.

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN

 Dated :02/07/2008

 O R D E R
       C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ.
                       -------------------------
     WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004
                   ---------------------------------
              Dated, this the 2nd day of July, 2008

                          J U D G M E N T

Ramachandran Nair, J.

The question involved in these four connected cases is

whether the persons appointed on promotion to the cadre of

Assistant Provident Fund Commissioners are entitled to seniority by

taking into account their period of service in that post on an ad hoc

basis.

2. We have heard senior counsel Shri. Mathai M. Paikeday

appearing for the petitioners in WP(C) Nos.18926/04 and 32832/04

and senior counsel Shri.N.N.Sugunapalan appearing for the

Provident Fund Organisation, petitioners in WP(C) Nos.26768/04

and 26793/04, and Shri.Suresh appearing for the contesting

respondents.

3. Petitioners in writ petition Nos.18926, 32832 of 2004

are direct recruitees appointed to the post of Assistant Provident

Fund Commissioners during the year 1994-95 from a list prepared

by the UPSC. However the contesting respondents were given ad

hoc promotion to the post of Assistant Provident Fund

WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004
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Commissioners during the years 1993-94 and 1994-95. It is

specifically mentioned in Ext.P2 series of appointment orders

produced in WP(C) No.32832/2004 of the contesting respondents

that their appointment is on ad hoc basis and the post given to

them were reserved for direct recruitees to be filled up later. It is

conceded that based on seniority and eligibility, the contesting

respondents were later appointed on regular basis to the post of

Assistant Provident Fund Commissioners. Even though,

appointment orders were issued to the contesting respondents

without giving retrospectivity for their promotion, they did not

challenge the same. However, when a combined seniority list of

promotees and direct recruitees in the cadre of Assistant Provident

Fund Commissioner is published in the year 1999, which is

produced as Ext.P2 in WP(C) No.18926/04, the contesting

respondents challenged the same. Even though the list contains

396 persons, the Central Administrative Tribunal entertained the

challenge against the seniority list in two O.As filed, one by one

person and another by two persons. In one O.A. only one direct

recruitee is arrayed as contesting respondent and in the other two

are made as respondents. In the normal course a seniority list

should be allowed to be contested only after notice to all concerned

WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004
-3-

or after giving public notice to give opportunity to those desiring to

contest the same. In any case, the Tribunal proceeded to decide

the case on merits and the impugned order was passed holding that

promotees were entitled to promotion with back date, if there were

vacancies available to be filled up by promotees. It is against this

order, the Organisation as well as the four direct recruitees have

approached this Court.

4. Learned counsel for petitioners has referred to two

decisions of the Supreme Court in The Direct Recruit Class-II

Engineering Officers’ Association and others Vs. State of

Maharashtra and others, reported in AIR 1990 Supreme Court

1607 and in A.N.Sehgal and others Vs. Raje Ram Sheoram

and others, reported in AIR 1991 Supreme Court 1406, and

contended that persons promoted are not entitled to seniority for

the period they were holding the posts on ad hoc basis. The

principle laid down by the Constitution Bench of the Supreme Court

in the above first decision is as follows :-

“To sum up, we hold that :

(A) Once an incumbent is appointed to a post according

to rule, his seniority has to be counted from the date of his

appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial

WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004
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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.”

Learned counsel appearing for the petitioners has also brought to

our notice an Office Memorandum issued by the Government of

India on 03/03/2008, by which instructions have been issued for

fixing seniority. Clause (3) of the said office memorandum is

extracted hereunder.

“3. Some references have been received seeking

clarifications regarding the term ‘available’ used in the preceding

para of the O.M. dated 03/07/1986. It is hereby clarified that

while the inter-se seniority of direct recruits and promotees is to

be fixed on the basis of the rotation of quota of vacancies, the

year of availability, both in the case of direct recruits as well as

the promotees, for the purpose of rotation and fixation of

seniority, shall be the actual year of appointment after

declaration of results / selection and completion of pre-

appointment formalities as prescribed. It is further clarified that

when appointments against unfilled vacancies are made in

subsequent year or years either by direct recruitment or

promotion, the Persons so appointed shall not get seniority of

any earlier year (viz. year of Vacancy / panel or year in which

recruitment process is initiated) but should get the seniority of

WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004
-5-

the year in which they are appointed on substantive basis. The

year of availability will be the vacancy year in which a candidate

of the particular batch of selected direct recruits or an officer of

the particular batch of promotees joins the post / service.

Going by the above decision of the Supreme Court and the G.O. the

contesting respondents are not entitled to reckon their ad hoc

services for the purpose of seniority. Besides this, we find that the

seniority list is prepared based on appointment orders issued for the

post of Assistant Provident Fund Commissioners to direct recruitees

and promotees. Even though promotions were given to the

contesting respondents without any retrospective effect, they did

not challenge the said orders. The Employees Provident Fund Staff

(Fixation of Seniority) Regulations 1989 prescribed under the

Employees Provident Fund Act does not provide for giving seniority

for the period a person was given ad hoc promotion in the cadre.

In fact, Rule 5 dealing with relative seniority between direct

recruitees and promotees specifically states that seniority shall be

determined according to rotation of vacancies based on quotas. It

is seen from the orders promoting the contesting respondents on ad

hoc basis that such appointments were made to the posts reserved

for direct recruitees. Obviously, the contesting respondents were

WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004
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not entitled to be appointed to those posts, which were reserved for

direct recruitees. However, according to them, when DPC met five

years after their appointment, they found that there were posts

available earlier to be filled up through promotion. However, the

proceedings of the DPC were neither produced before the CAT nor

before us. In any case, the DPC’s recommendations, if any, made

to appoint the contesting respondents to the post of Assistant

Provident Fund Commissioners with an anterior date, is not seen

accepted by the appointing authority and the contesting

respondents have not challenged the same. Having accepted their

promotions on regular basis in 1999, we do not think the contesting

respondents are entitled to seniority with retrospective effect. We

therefore, allow the writ petitions by vacating the order of the

Tribunal.

(C.N.RAMACHANDRAN NAIR, JUDGE)

(V.K.MOHANAN, JUDGE)

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