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TMI Blog2009 (8) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... the post of stenographers (Ordinary Grade) were to be made by the Staff Selection Commission (hereinafter referred to as 'Commission'), New Delhi. A demand was sent to the Commission to sponsor certain number of stenographers to the Income Tax Department, Kanpur. The Commission could not provide any selected candidate and by its letter dated 19.4.1978 the Commission expressed its inability to hold a selection and requested the department to fill up the vacancies through Employment Exchange. The department sought permission to recruit the stenographers from the Central Board of Direct Taxes (for short the C.B.D.T. or the Board) which was granted to it vide letter dated 29.6.1978. Examinations were conducted and the petitioners and the proforma respondents were appointed in the Income Tax Department on various dates between 1978-79. Referring certain facts relating to the Income Tax Departments of Lucknow and Allahabad the petitioners have alleged that the Commission granted approval for regularization of the ad hoc stenographers from the date of their initial appointment in the Lucknow and Allahabad region. The petitioners have further said that their cases were exactly sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, Allahabad Bench, Allahabad allowed all the Original Applications mentioned above vide its order dated 1.9.2006 and quashed the decision dated 22.9.1998 taken by the Board and consequential order dated 13.10.1998 and the reversion orders. 6. Feeling aggrieved by this order dated 1.9.2006 the petitioners (of Civil Misc. Writ Petition No. 29117 of 2007) have filed this writ petition. It will not be out of place to mention here that feeling aggrieved by the Board's decision dated 22.9.1998 and consequential orders passed by the Chief Commissioner of Income Tax, Kanpur and Commissioner of Income Tax, Meerut, J.V. Trinidade and others filed O.A. No. 1590 of 2002. This Original Application was heard by a different bench of Central Administrative Tribunal, Allahabad and the same was dismissed on 8.2.2006 and therefore J.V. Trinidade has filed a separate Civil Misc. Writ Petition No. 25550 of 2006. As mentioned earlier in this judgment we shall deal with this writ petition in latter part of this judgment. 7. Respondent Nos. 1 to 5 of Civil Misc. Writ Petition No. 29117 of 2007 have vehemently opposed the contentions raised by the petitioners. They have said in their cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not challenged by the petitioners or the proforma respondents. The services of the petitioners and proforma respondents having been regularised by an incompetent authority, they remained ad hoc and that is why the Board and Chief Commissioner of Income Tax, Kanpur did not promote them till the passing of the impugned order dated 22.9.1998 passed by the Board. It has been alleged by respondent Nos. 1 to 5 that neither the Board nor Chief Commissioner of Income Tax, Kanpur was competent to pass the impugned and consequential orders. It has been further said that the Income Tax Employees Federation filed Writ Petition (Civil) No. 1011 of 1989 before the Hon'ble Supreme Court for regularisation of services of ad hoc employees. The Board opposed the writ petition by filing an additional affidavit before the court with the stand that the ad hoc stenographers cannot be regularised without following the prescribed Rules and the Rules cannot be relaxed in their favour. The Board had also said in the counter affidavit that as per orders of the Department of Personnel Training, Special Qualifying Tests were conducted in the years 1982, 1983, 1985 and 1987 by the Commission but non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners of Civil Misc. Writ Petition No. 38755 of 2007 (Rajesh Kumar and Ors. v. Smt. Anita Vinayak and Ors.) have alleged in their writ petition more or less similar facts which are mentioned in the connected Anil Kumar Sehgal's writ. They have alleged certain additional facts which need mentioning here. They have said that feeling aggrieved by the order passed in O.A. No. 297 of 2000 and connected original applications, they filed a writ petition before the High Court of Uttaranchal at Nainital. Simultaneously Writ Petition No. 68458 of 2006 was filed by Central Board of Direct Taxes against the said order before this Court. In these set of circumstances, the petitioners withdrew their writ filed before the Uttaranchal High Court with liberty either to seek intervention in aforesaid Writ Petition No. 68458 of 2006 or to file a separate writ. The petitioners have admitted that they alongwith respondent Nos. 1 to 14 of the said writ petition were initially employed in Income Tax Department in Group - C cadre holding the post of stenographers. In the year 1976, the Central Government established a new recruiting agency for Group - C of Central Government employees namely Staff Sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appointment of all the 31 private respondents was made subject to the condition that their services were liable to be terminated on appointment of the candidates selected by the Commission. The private respondents were appointed prior to the petitioners due to urgent need of the hour. It has been further alleged by the petitioners that it appears that in the context of the long continued service of the ad hoc employees the Central Government was inundated with persistent requests to regularise the services of ad hoc/daily rated/casual LDCs and Stenographers Grade III/D, working in various attached and subordinate offices as well as non participating offices of CSCS/CBSS of Central Government. The matter was examined by the Department of Personnel and Training and it was decided in consultation with the Commission that such ad hoc employees were to be allowed to appear in a Special Qualifying Examination, as a one time measure, to be conducted by the Commission on 26th December, 1993 (Sunday) for the purpose of their regularisation. Earlier, Special Qualifying Examinations were conducted twice, in 1987 and 1991, but these 31 stenographers did not appear at any of the three exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioners in this writ petition has been opposed by way of counter affidavits filed by the private respondents. The stand taken by the private respondents is more or less the same which the petitioners of Civil Misc. Writ Petition No. 29117 of 2007 (Anil Kumar Sehgal's writ) and Civil Misc. Writ Petition No. 38755 of 2007 (Rajesh Kumar's writ) have taken in their respective writ petitions. It is worth mentioning here that respondent No. 19, Deepak Mittal, has taken a few additional pleas which are exclusively related to him. He has said that his case is different to other private respondents of this writ petition and he is on a better footing. 14. We have heard the learned Counsel for the parties and perused the records. 15. These three writ petitions in hand relate to the dispute of seniority between ad hoc stenographers and the stenographers regularly selected by the Commission. The petitioners and private respondents in Civil Misc. Writ Petition No. 29117 of 2007, the petitioners in Civil Misc. Writ Petition No. 38755 of 2007 and all the private respondents in Civil Misc. Writ Petition No. 25550 of 2006 were initially selected and appointed in the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. From the perusal of the above letter, it is evident that letter No. C. No. 124/78 (Estt.) dated the 13th April, 1978 was sent by the Income Tax Department, Kanpur to the Commission, through which it was requested that certain number of stenographers be sponsored so that they may be appointed on the post of Stenographers. In reply to this letter, the Commission stated that all candidates who qualified in the Stenographers (O.G.) Examination 1977 were already nominated to different subordinate offices and the Commission had no candidate on the panel to sponsor against the vacancies required by the Department. The Commission had assured the Department that the latter's demand would be met on the availability of qualified candidates from the examinations of 1978 which was likely to be held in August, 1978. In the same reference, the Commission suggested the Department and expressed its 'No Objection' if the vacancies were filled up by the Department purely on ad hoc basis from permissible channels of recruitment including Employment Exchange. It was specifically mentioned in the said letter that this facility was available only till the commission was in a position to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that this selection was as good as a selection made by the Commission. We find ourselves unable to accept this contention also. The department was not actually competent to hold an examination to select and appoint stenographers on regular basis by itself. The Commission had given permission in consultation with the Board that keeping in view the need of the hour, the department may select certain stenographers on ad hoc basis so that the work of the Income Tax Department may not suffer. In this regard, our attention has been drawn by the ad hoc stenographers towards the letter dated 29.6.1978 addressed to the Commissioner of Income Tax, Kanpur and sent by the Central Board of Direct Taxes with reference to the recruitment of stenographers (O.G.). In this letter the Board has simply written that the Board is examining the matter of appointment of stenographers in consultation with the Commission. It has been further mentioned in it that in the meantime the Commissioner of Income Tax, Kanpur may fill up vacancies in the cadre of stenographer (O.G.) on an ad hoc basis only by making the recruitment on local basis. This letter does not indicate that any decision was taken that regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this letter was sent in context to the Stenographers and Lower Division Clerks of the office of Commissioner of Income Tax, Lucknow. The contents of this letter do not disclose the details of the facts the Commissioner of Income Tax, Lucknow had submitted to the Board. This letter also does not disclose the circumstances, terms and conditions on which the ad hoc stenographers and Lower Division Clerks at Lucknow and Allahabad were to be regularised. On the other hand this letter definitely shows that it had no concern with the ad hoc stenographers who were posted in the office of the Commissioner of Income Tax, Kanpur. No Rule has been mentioned in this letter under which the stenographers and Lower Division Clerks at Lucknow were regularised despite the fact that they were ad hoc. We are not dealing here with the cases of stenographers and Lower Division Clerks in the office of Commissioner of Income Tax, Lucknow. There is thus no need to discuss their cases further. We have referred to the Lucknow appointments here to resolve the question whether on the strength of this letter the Commissioner of Income Tax, Kanpur who is the Cadre Controlling Authority of his office was entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, considering certain extra-ordinary circumstances prevailing during the relevant period had decided to regularise the services of those employees who were appointed on ad hoc basis on various posts under various departments of Central Government by conducting Special Qualifying Examination to regularise their services. One of the salient features of the circular letter through which these examinations were conducted was that the ad hoc employee shall be regularised only when he passes the Special Qualifying Examination and the date of his regularisation will be the date of pronouncement of the result of such examination. Since none of the ad hoc stenos appeared in any of the Special Qualifying Examination, they have lost their opportunity to become regularised. Therefore, in our opinion, the Tribunal has rightly held so. 28. In the case of State of Punjab v. Jagdeep Singh AIR (1964) SC 521, the Apex Court has held that where a government servant has no right to a post or to a particular status, though the authority under the Government, acting beyond its competence had purported to give that person a status which, it was not entitled to give, he will not in law be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in this regard are that the ad hoc stenos were appointed in the year 1978-79; that they were granted confirmation on 11.6.82 and 17.4.84; that the seniority list was published in the year 1991 and remained in force till 1995 in which the ad hoc stenos were shown senior to the regularly selected stenos; that the seniority list dated 1.1.95 was wrong and the ad hoc stenos had preferred their representations questioning its validity and legality and consequently orders dated 22.9.98 and 13.10.98 were passed upholding their objections. It has been also argued in this reference that the O.A. No. 297/2000 was barred by the principles of limitation as the cause of action had arisen in the year 1982 and 1984. This argument has been refuted by the regularly selected stenos. 33. From the perusal of the order passed in O.A. No. 297 /2000, it is clear that no plea of limitation was taken before the Tribunal by the opp. parties of the relevant O.A. No such plea has been taken by the petitioner in writ petition No. 29117/07 and writ petition No. 38755 of 2007 either. In the O.A. No. 1590/2002 filed by J.V. Trinidade and others before the Tribunal, the applicants had specifically pleaded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Act is not to restrain but to enlarge the field of choice so that the employer may choose the best and most efficient of the candidates. 37. In a subsequent decision (1996) 6 S.C.C. 216 Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visheshwara Rao and Ors. the Apex Court has held that restricting the selection only to the candidates sponsored by Employment Exchange is not proper. In addition to requisitioning the names from the Employment Exchange, names should be called for by publication in Newspapers having wide circulation and by display on office notice board or announcement on radio, television and publication in employment news bulletin. 38. In (1998) 2 S.C.C. 332 Arun Tewari and Ors. v. Zila Mansavi Shikshak Sangh and Ors. the Apex Court has referred to N. Hargopal and K.B.N. Vishweshwar Rao cases (supra) and reiterated the necessity of wide circulation of offers for recruitment. 39. The case 2001 (4) ESC 595 K.A. Abdul Majeed v. The State of Kerala and Ors. has also been cited on behalf of the ad hoc stenos in support of their contention that their regularisation should be considered from the date of their initial appointment. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank Limited Bhopal v. Nanu Ram Yadav and Ors. (2007) 8 SCC, 264 has no application to the facts of the case in hand. Allegations in that case were that some of the selected candidates were related to the then Managing Director of the Bank. In those facts and circumstances, the Supreme Court had reached the conclusion that the appointments were irregular. 43. The case 1988 (Supp.) SCC 127 A.N. Shastri v. State of Punjab and Ors. relates to seniority and promotion based on academic qualification for the eligible candidates. We have examined the facts of this case and in our opinion there is nothing in it factwise, of which any benefit may be given to the ad hoc stenos. 44. In 2007 (3) ESC 2093 (DB) Cal. Shri Umanand Roy v. A N Administration and Ors., the Calcutta High Court has said that appointments and selections ought not to be disturbed after long lapse of time. The dispute in the present case relates to seniority. The ratio of Umanand Roy's case is of no relevance on the seniority question. Reliance has also been placed upon : i. (1982) 1 Supreme Court Cases 379 (R.S. Makashi and Ors. v. I.M. Menon and Ors.) ii. AIR 1986 Supreme Court 2086 (K.R. Mudgal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the impugned order dated 22.9.1998 was passed by the Board. The above set of circumstance clearly go to show that since the very beginning, various seniority lists were subjected to challenge either by the regularly selected stenos or by the ad hoc stenos. It also appears that till date the seniority list has not taken a final shape. Therefore, we are of the opinion that the position of law as laid down by the Apex Court in the above mentioned four cases has no application to the cases before us. 46. In the case AIR 1991 SC 1244 State of Bihar and Ors. v. Akhori Sachindra Nath and Ors., the Apex Court has dealt with the issue of promotion with retrospective effect. In that case, the dispute was between the employees who belonged to the same cadre and there was a dispute of their seniority between direct recruits and the promotees. We have gone through this ruling. Keeping in view the facts of this case we find that the law laid down in this case has no application in the cases before us. 47. The case (2008) 3 SCC 148 Ashok Kumar Srivastava and Ors. v. Ram Lal and Ors. was also cited before us. In that case the State Government had taken out certain posts from the purview of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ramesh Chandra v. Union of India and Ors. decided on 18.12.1990. On the other hand the regularly selected stenos had referred there the cases of Smt. Shashi Prabha v. Union of India decided on 10.12.1996 and a full bench decision of Central Administrative Tribunal, Lucknow Bench dated 24.8.1999, Km. Kulwant Kaur and Ors. v. Union of India and Ors.. 52. We have examined with caution the two impugned judgments passed by the Tribunals on 1.9.2006 and 8.2.2006. We have also examined the orders passed in Dinesh Kumar's case, Ramesh Chandra's case, Smt. Shashi Prabha's case and Km. Kulwant Kaur's case. On perusal of the order passed by the Tribunals in Dinesh Kumar's case and Ramesh Chandra's case we find that the facts of two cases exclusively relate to the peculiar circumstances of the two cases. No principle of law was laid down by the Tribunals in those cases. On the other hand, the orders passed in Shashi Prabha and Km. Kulwant Kaur's cases specific ratios have been given by respective Tribunals. So much so in Km. Kulwant Kaur's case a specific law point was formulated and was duly answered. The order passed by the Tribunal in J.V. Trinidade&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be treated at par with the other regular employees for all purposes from the date of their initial appointment. 54. From the perusal of the above, it is clear that the Board has not mentioned in this letter the matters which were subject of its consideration. It does not even speak of the issues placed before it. It has also not been mentioned in this letter whether the regularly selected stenos were heard or given an opportunity of being heard before deciding the matter pending consideration before it. No Rule has been mentioned in this letter under which this decision was taken by the Board. Nowhere it has been mentioned that the Board was competent to take such a decision on its own. If it had power to regularise the ad hoc stenos, the Board should have mentioned the relevant Rules and Regulations in the letter but nothing has been mentioned in it. Commenting upon this letter, the Tribunal in its judgment dated 1.9.2006 (impugned in Civil Misc. Writ Petition No. 29117 of 2007 and Civil Misc. Writ Petition No. 29117 of 2007) has rightly observed that 'the questions for our decision are as to whether the respondents were justified in treating the respondents No. 3 to 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Km. Kulwant Kaur's case because the parties therein are not before us as a party in these cases and at the same time no issue relating to them are before us for decision. The observations regarding those cases have been made only with a view to scrutinise whether the orders impugned before us in these three petitions are legal or illegal. The above observations were necessitated as we had to decide the seniority between the contesting parties in the cases before us. 58. Thus, we are of the considered view that Civil Misc. Writ Petition No. 29117 of 2007 (Anil Kumar Sehgal and Ors. v. Smt. Anita Vinayak and Ors.) and Civil Misc. Writ Petition No. 38755 of 2007 (Rajesh Kumar and Ors. v. Smt. Anita Vinayak and Ors.) have no force and they are liable to be dismissed and are hereby dismissed. The Civil Misc. Writ Petition No. 25550 of 2006 (J.V. Trinidade and Ors. v. Union of India and Ors.) succeeds and is allowed. The impugned order dated 8.2.2006 passed in O.A. No. 1590 of 2002 is quashed. As a consequence the decision dated 22.9.1998 of Central Board of Direct Taxes and the consequent orders passed by the Chief Commissioner of Income Tax, Kanpur are also quashed. 59. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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