UNION OF INDIA & ANR.  Vs MITHLESH TYAGI -Judgment by Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: January 11, 2024

+ W.P.(C) 8244/2020, CM APPL. 26717/2020

UNION OF INDIA & ANR.
….. Petitioner
Through: Mr. Jaswinder Singh, Adv.

versus

MITHLESH TYAGI
….. Respondent
Through: Mr. M.K. Bhardwaj,
Mrs. Priyanka M. Bhardwaj &
Mr. Arun Prakash, Advs.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

J U D G M E N T
V. KAMESWAR RAO, J
1. The challenge in this writ petition, filed by the Union of India through its functionaries, is to an order dated January 23, 2020, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (�Tribunal�, for short) in Original Application No.2164/2019 (�OA�, for short) whereby the Tribunal has allowed the OA filed by the respondent herein by directing in paragraph 9, as under:
�9. Though, technically the respondents are justified, but in view of the peculiar facts of the case narrated above, more particularly that the applicant was educationally qualified and she was selected and she was working on ad hoc basis in Kendriya Vidyalaya before being selected by the respondents and she had been working to the satisfaction of the respondents right from 1983 upto the attainment of 60 years of her age in 2008 and right from 1955 the need of Hindi Pradhyapak was required and right from 1979 vacancies were available and the recruitment rules were also framed in 1979 and as per their own submission 200 vacant posts were available and the services of the applicant was taken by posting her all over India though on the basis of ad-hoc appointment, I am of the view that her services shall be treated as qualifying service right from 21.01.1983 to 04.07.2008 and I direct the respondents to treat the above period of service of the applicant as qualifying service and calculate all her retiral and other pensionary benefits and pay the same to the applicant within a period of three months from the date of receipt of a certified copy of this order. However, she is not entitled for any interest from 2008 to the date of passing of this order. In case the retiral benefits are not paid within the above stipulated time, applicant is entitled to interest on the retiral benefits at the GPF rate. No order as to costs.�

2. The facts as noted from the record are that on January 22, 1983, the respondent was initially appointed as Hindi Pradhyapak (�HP�, for short) on ad-hoc basis. It is an admitted case of the parties that, on the date of her appointment on ad-hoc basis as HP, she was beyond the age limit, prescribed under the Recruitment Rules, i.e., 30 years and that the regular recruitment of the candidates had to be done through the Staff Selection Commission (�SSC�, for short).
3. The case of the petitioners was that due to exigency, respondent was appointed on ad-hoc basis as HP which appointment continued from time to time till November 30, 1989, when her services were disengaged. Thereafter, the respondent filed OA 2239/1990, before the Tribunal and the said OA was disposed of on July 10, 1992 by the Tribunal directing the petitioners to consider the case of the respondent for appointment anywhere in India. The respondent was again appointed as HP on ad-hoc basis on February 8, 1993 which appointment continued till May 31, 2008 with the same officiating grade till she attained the age of 60 years which is otherwise, an age of superannuation.
4. In the year 2003, the respondent filed another OA, being OA 1336/2003 before the Tribunal seeking her regularisation. The said OA was dismissed by the Tribunal vide order dated May 29, 2003, on the ground that she was not eligible for initial appointment for the reason that she was beyond age limit of 30 years as per Recruitment Rules. She filed a writ petition being W.P.(C) 5224/2003 before this Court. This Court also vide order dated December 5, 2005, dismissed the writ petition by stating as under:
� ….. Pursuant to the aforesaid observations, the respondents examined her case in consultation with the Staff Selection �commission and DOPT seeking their advice for grant of relaxation of her age in her favor for regularization of her services. Upon such scrutiny it was held that since the petitioner was over-aged even at the time of initial appointment on ad hoc basis i.e. on 22nd January 1983, it was not found possible to argue to her request for regularization of her services. It is also established from the records that the petitioner was never appointed in accordance with the provisions of the recruitment rules. The recruitment rules require that the selection of eligible persons to the post of Hindi Pradhyapak to be undertaken by the Union Public Service Commission. The earlier requirement was that selection to the said post was required to be done through Staff Selection Commission. In any case the petitioner was never selected in any of the selections held in accordance with the recruitment rules. Her appointment was de hors rules. As a matter of fact the petitioner when initially appointment was over-aged and therefore the request for regularization of her services could not be accepted to by the respondents ……….�

5. The respondent filed appeal before the Supreme Court being Civil Appeal No.7084/2008, against the order of this Court, which was also dismissed by the Supreme Court vide order dated April 8, 2015.
6. It appears that the respondent made representations to the petitioners on May 5, 2015, June 18, 2015 and July 3, 2015, seeking pensionary benefits and various other reliefs. On August 4, 2015, the petitioner No.1 rejected the representation of the respondent dated May 4, 2015, by stating that the respondent was 34/35 years and 4 months years old at the time of her initial appointment and no ground is made out for regularisation and no question for persionary benefits would arise. Being aggrieved by the order of the petitioners, the respondent made further representation to which the petitioners have sent a communication dated June 29, 2017. The communication dated June 29, 2017, became the subject matter of OA 3904/2017 before the Tribunal. The Tribunal disposed of the said OA vide order dated September 25, 2018, by holding in paragraph 17 as under:
�17. The Tribunal is of the view that any confusion about her age needs to be set at rest by relying on� her 1oth class certificate. Therefore, it would be in the interest of justice that applicant makes a formal representation to the respondents duly appending all documents in support of her claim within four weeks. On receipt of such a representation, the respondents shall give a reasoned and speaking order within a period of six months duly considering the applicability of Apex Court judgments quoted in para 13 & 14 above and the policy circular dated I 0. 04.1969 quoted in para 17 above and critically examining any similarities therein with that of applicant. In case, the applicant becomes eligible for certain benefits, as a result of this exercise, these shall also be extended to her within a further period of eight weeks. The OA is disposed off with these directions at this stage.
No order as to costs.�

7. It appears that the respondent has worked on ad-hoc basis in Kendriya Vidyalaya before she was selected for the post of HP, wherein, she had sought age relaxation for the purpose of regularisation under the DoP&T guidelines. But her request was turned down, on the ground of eligibility that, she was over-aged/ beyond 30 years of age on the date of her initial appointment in view of the provisions of the Recruitment Rules. Suffice to state, her repeated approaches to the Courts were not successful.
8. In terms of the directions of the Tribunal, the respondent submitted a representation dated October 21, 2018. The said representation was rejected on April 8, 2019, which became the subject matter of the OA 2164/2019. It is the order passed therein, which is the subject matter of the present petition. The order dated April 8, 2019, reads as under:
�(i) In reference to Point-], it is informed that in Recruitment Rule, 1979, the assessed age limitation for the post of Hindi Pradhayapak was 21 to 30 years. As per the directions of Central Government, the age relaxation is given to government personnel’s, SC, ST, OBC and Physically Handicapped persons. In the matter of Smt. Tyagi, the Recruitment Rule, 1979 was in force, in which maximum age limit was 30 year. So age relaxation was not given to her. She had put up this issue before Hon’ble High Court in CWP No.522412003 also and pertaining to the same has been mentioned in detail in above para-8. So the Qffice Notice No.4/7168/Estt(D) dated 10.04.1969 of Home Ministry does not applicable in the matter of Smt. Tyagi.

(ii) In regard to point -2 and 3, this office does not wish to say anything regarding the application of Smt. Tyagi for examination in Staff Selection Commission.

(iii) In regard to Para-4 of representation of Smt. Tyagi, the description of the same has been given in above para- 4 and 5.

(iv) In regard to point-5, in para-17 of judgment of Hon’ble CAT, it has been clearly mentioned in the office notice dated of 10.04.1969 of Home Ministry that “At the same time, it is necessary to ensure that the benefit of age relaxation is not extended to the over-aged ad hoc appointees”

(v) In regard to point-6, it is submitted that this office has no doubt on the date of birth of Smt. Mithilesh Tyagi. In this respect, it is submitted that at the time of first ad hoc appointment on the post of Hindi Pradhayapak, as per the Certificate of tenth class she had crossed the maximum age limit of 30 years prescribed in Recruitment Rules.

(vi) In regard to point-7 to 10, considering on the representation of Smt. Mithilesh Tyagi it was found that not finding regular candidate for the regular post of Hindi Pradhayapaks, Smt. Tyagi was appointed as per session on such posts time to time completely on ad hoc basis and it was an optional system to keep continue the Language Training, smoothly. Smt. Tyagi was never kept on regular basis. She was kept only for training session. After the year 1979, the regular appointment could only be done by Staff Selection Commission. Because, Smt. Mithilesh Tyagi at the time of her initial ad hoc appointment did not fulfil the conditions of age limit as per Recruitment Rule, 1979, so neither Staff Selection Commission nor Department of Personnel and Training never agreed for her regular appointment. Smt. Tyagi filed various petitions for her regularization, but no court passed an order for her regularization. In all orders, it has been mentioned by the courts that she does not fulfil the conditions of Recruitment Rules, so she could not be regularized. On the basis of equivalent Recruitment Rule, Smt. Tyagi was not given regular appointment on ad hoc basis. So there is no base to regularize the ad hoc services of Smt. Tyagi. In lieu of her ad hoc services she was given fixed wages.�

9. The submission of the learned counsel for the petitioners is that the Tribunal has failed to appreciate that the regular appointment to the post of HP can only be made through a competitive examination conducted by the SSC, provided that the candidate, belongs to general category, is within the upper age limit of 30 years.
10. He submitted that the respondent had worked on ad-hoc basis as a stop-gap arrangement pending regular selection and could not have been appointed on regular basis as she was beyond the upper age limit under the Recruitment Rules.
11. That apart, he submitted that the issue of her regular appointment has attained finality till the Supreme Court and the respondent�s prayer for pensionary benefits could not have been considered by the Tribunal much less granted by the Tribunal in the manner it did in the impugned order.
12. According to him, the impugned order passed by the Tribunal is by overlooking the issue of her regular appointment, has attained finality. Moreover, the Tribunal�s finding to treat the period between January 21, 1983 to July 4, 2008 as the qualifying service is uncalled for and in violation of Rule 13 of the CCS (Pension) Rules 1972 as the respondent was neither a substantive nor a temporary employee nor was working in officiating capacity.
13. That apart, the ad-hoc appointment was with 32 broken spells between the years 1983-1989 and thereafter between the years 1993 to 2008.
14. He submitted that the Tribunal had wrongly rejected the submissions made by the petitioners and granted the pensionary and other benefits to the respondent for the period between 1983 to 2008, which is clearly impermissible.
15. On the other hand, Mr. M.K. Bhardwaj, learned counsel for the respondent would justify the order of the Tribunal by stating that the Tribunal has rightly granted the relief, inasmuch as, the respondent having worked for more than 19.5 years, cannot be denied the pensionary benefits only for the reason that her appointment was not regular.
16. He submitted that, 19.5 years of engagement is not a small period for the petitioners to overlook and deny the pensionary benefits to the respondent. He also submitted that, a compassionate view needs to be taken in favour of the respondent so that she can get pensionary benefits.
17. Having heard the learned counsel for the parties and perused the record, the short issue which arises for consideration is whether the Tribunal was justified in granting the pensionary benefits to the respondent. The answer to the same has to be in the negative, inasmuch as the appointment of the respondent was not a regular appointment but on ad-hoc basis. This we say so, because she was appointed when her age was beyond 30 years, the permissible age limit under the Recruitment Rules.
18. In fact, the respondent had claimed regularisation of her services before the Tribunal, this Court and even before the Supreme Court, but she has not succeeded in her endeavour, therefore, the claim for pensionary benefits on ad-hoc engagement was not in accordance with rules, as such an appointment was not a regular appointment, and could not have been treated as qualifying service as has been directed by the Tribunal. Regrettably, the Tribunal by giving such direction has also included the period between 1989-1993, as qualifying service when she was pursuing litigation before the Tribunal, for pensionary benefits, and not employed, is uncalled for.
19. The law in this regard is well settled, in terms of the judgment of the Supreme Court in the case of Director General, Doordarshan Prasar Bharti Corporation of India & Anr. v. Smt. Magi H Desai, Civil Appeal No. 1787/2023 decided on March 24, 2023, wherein the Supreme Court has held as under:-
�5. We have heard learned counsel for the respective parties at length.
At the outset, it is required to be noted and it is an admitted position that for the period between 1985 till 31.03.1995 the respondent served as a casual/contractual employee and her services came to be regularised as per the Scheme w.e.f. 31.03.1995. As such, under the Scheme of Regularisation, there is no mention that the casual services shall be counted towards service benefits/pensionary benefits. Even as per the clarification issued by the DOPT in the year 2009, it was clarified that such appointee is not entitled to claim any benefit out of the services rendered by him/her on contractual basis before he/she was appointed on regular basis on a government post.
6. The respondent is governed by the Central Civil Services (Pension) Rules, 1972. Rules 13 & 14 of the 1972 Rules, which are relevant for deciding the controversy in the present case, read as under:

�13. Commencement of qualifying service – Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity :
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post :
Provided further that �
(a) in the case of a Government servant in a Group `D’��.
(b)in the case of a Government servant not covered by clause (a),�
14. Conditions subject to which service qualifies:
(1) The service of a Government servant shall not qualify, unless his duties and pay are regulated by the Government, or under conditions determined by the Government.
(2) For the purposes of sub-rule (1), the expression “Service” means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that
Government.
(3) In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify :
Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply.�

7. Rule 13 of the 1972 Rules provides for commencement of qualifying service. As per Rule 13, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. It further provides that such officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Therefore, the services rendered on a substantive post or services rendered as officiating or temporary service shall be treated as qualifying service. Service rendered as casual/contractual cannot be said to be officiating or temporary service. Even the services rendered as temporary service can be considered as qualifying service provided that the officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Service rendered as casual/contractual cannot be said to be service rendered on a substantive appointment.
8. Under the circumstances and on a fair reading and interpretation of Rule 13 of the 1972 Rules, the High Court has committed a very serious error in observing that the services in temporary capacity will include the classes of temporary service such as casual or even contractual. The High Court has materially erred in observing that the contractual service would be qualified as service in a temporary capacity. The question is not whether the services rendered by a contractual employee would be qualified as service in a temporary capacity. The question is, whether, in fact, such contractual employee rendered the services as temporary or not.
9. Now so far as the submission on behalf of the respondent that in other departments under the scheme the employees of such departments are entitled to their services rendered as casual/contractual counted for qualifying service for pensionary/service benefits is concerned, merely because some other departments might have such schemes, the respondent shall not be entitled to the same benefit in absence of any scheme in the appellants� department/department in which the respondent rendered her services. The appellant � Doordarshan Prasar Bharti Corporation of India is an autonomous independent department/body. As observed hereinabove, neither the rule nor the regularisation scheme provide that services rendered as casual/contractual shall be treated as temporary service and/or the same shall be counted for the purposes of pensionary/service benefits.
10. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. The judgment and order passed by the Tribunal dismissing the Original Application is hereby restored. Present appeal is accordingly allowed. However, in the facts and circumstances of the
case, there shall be no order as to costs.�
(emphasis supplied)

20. In view of the aforesaid position of law, as the engagement of the respondent was not substantive and it was not even temporary / officiating followed by a substantive appointment, so as to treat the period as qualifying service, we find that the Tribunal has clearly erred in allowing the OA in the manner it has done. The impugned order of the Tribunal dated January 23, 2020, is set aside.
21. The writ petition is disposed of.
CM APPL. 26717/2020
Dismissed as infructuous.

V. KAMESWAR RAO, J

ANOOP KUMAR MENDIRATTA, J

JANUARY 11, 2024/aky

W.P.(C) 8244/2020 Page 13 of 13