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