UOI vs R.K.MITTAL
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19.03.2024
+ W.P.(C) 1609/2004 AND CM APPL. 1313/2004 (Stay) & CM APPL. 1890/2004 (Stay)
UOI ….. Petitioner
Through: Ms. Pratima N. Lakra, CGSC with Mr. Chandan Prajapti, Ms. Vrinda Baheti and Ms. Kashish G. Baweja, Advocates.
versus
R.K.MITTAL ….. Respondent
Through: Mr. Viraj R. Datar, Sr. Advocate with Mr. Saurav Joon, Advocate.
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
REKHA PALLI, J (ORAL)
1. The present writ petition under Articles 226 and 227 seeks to assail the order dated 26.02.2003 passed by the learned Central Administrative Tribunal in O. A. No. 1611/2002. Vide the impugned order, the learned Tribunal, by relying on the decision of the Apex Court in Union of India and Anr. v. Harish Chander Bhatia And Ors. 1995 (2) SCC 48, has allowed the original application filed by the respondent and has consequently directed that his initial appointment to the Delhi, Andaman and Nicobar Islands Police Service, (hereinafter referred as DANIPS) under Rule 25(3) of the DANIPS Rules (hereinafter referred as the Rules) be included towards his service for computing his seniority. This direction, we find, was issued by taking into account the fact that the respondent had worked in the same purportedly ad hoc capacity for over 6 years.
2. On the last date, in view of the submissions of the learned Senior Counsel for the respondent that the matter was squarely covered against the petitioner not only by the decision in Harish Chander Bhatia (Supra) but also by a subsequent decision dated 24.12.2014 of a Co-ordinate Bench in W. P. (C) 3626/2014 titled Rajan Bhagat v. Union of India & Anr. had granted time to the learned counsel for the petitioner to obtain instructions.
3. Today, learned counsel for the petitioner, while not denying that the respondent though purportedly appointed on ad hoc basis had, like the petitioner in Rajan Bhagat (Supra), continued to serve in the DANIPS for over six years that too on the basis of requests made by the petitioner/department for extending his services, submits that the aforesaid two decisions would not be applicable to the facts of the present case as the respondent in the present case was appointed under Rule 25 (3) of the Rules on ad hoc basis / under a local arrangement and not under Rule 25(1) and (2) of the Rules under where the petitioner in Rajan Bhagat (Supra) was appointed.
4. We may, at this stage, note that appointments under Rule 25 (3) of the Rules are on ad hoc basis whereas appointments under Rule 25 (1) and (2) are made on officiating basis. Learned counsel for the petitioner has, while emphasizing on the difference, vehemently urged that the decisions in Harish Chander Bhatia (Supra) and Rajan Bhagat (Supra) would not be applicable to the facts of the present case. We are, however, unable to agree with this plea as we are of the view that in the light of the admitted position that the respondent had worked for over six years in the same capacity after his initial appointment under Rule 25 (3), his case for including this period towards his service for the purpose of computing his seniority cannot be said to be any different from the facts of the aforesaid two decisions.
5. It may, therefore, be apposite to note the relevant extracts of the decision in Rajan Bhagat (Supra), as contained in para nos. 3 and 7 thereof, which read as under:-
3. The petitioner was working in the Delhi Police when he was promoted as Assistant Commissioner of Police on 4.8.1994 under Rule 24 (1) of the Delhi Andaman & Nicobar Islands Police Services Rules (DANIPS Rules) against a sanctioned post. This was pursuant to the Central Ministry of Home Affairs letter issued in that regard. The initial ad hoc appointment was followed by substantive appointment in 1997. A subsequent Notification dated 12.6.2000 clarified that the appointment of the petitioner was to be from 1997. The DANIPS cadre had seen the issue of seniority being carried in appeal to the Supreme Court in H.C. Bhatias case (supra), where that Court observed that the long period of service spent beyond six months (in accordance with Rule 25 of the DANIPS Rules) could not be ignored while reckoning seniority. This led to second and subsequently third round of litigation. The seniority lists prepared at that stage were challenged by direct recruit officers who, eventually, succeeded in their challenge and on 26.2.2003, the CAT allowed their applications and quashed the seniority list. It was held that OM governing the seniority – contained in the Circulars/Memos dated 7.2.1986 and 3.7.1986 were inapplicable. Even the Review Petition was rejected on the ground that the amendment relied upon by the promotees in the case was made in 1991. That order of the CAT in OAs 1418/2002, 1435/2002 and 1611/2002 was challenged by the promotees as well as the Union of India. The latter filed W.P. (C) 598/2004.
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7. This Court has considered the submissions. The decision in Union of India v. H.C. Bhatia (supra) mandated that the respondents had to give effect to the officiating period or periods spent by officers in the cadre having regard to the overall circumstances of the case. The seniority list drawn by giving effect to such position and taking into account the Circulars of the Central Government, issued in regard to seniority, specially the OM dated 3.7.1986 required rotation of vacancies for the purposes of assigning inter se seniority as between direct recruits and promotees. The CAT fell into an error in the decision in OA 118/2002, 1435/2002 and 1611/2002 in proceeding on the assumption that such Circulars were not binding and could not be applied given the structure of the Rules. The CAT was of the opinion that the amendments made to the DANIPS Rules was only effective from 1991. This Court, however, was of the opinion that the CATs decision was wrong in view of the mandate in H.C. Bhatias case (supra) and especially considering that even in 1988, amendments were made to the rules authorizing the application of rota rule to the extent employees or officers were available, in any particular quota. Even according to the CATs decision in OA 1418/2002 and connected cases, the Rules of 1991 would apply which, in turn, means that rotation in vacancies had to be resorted to for the purposes of seniority to the extent of availability of officers from one stream or the other. In these circumstances, following the judgment in Trilochan Singh v. UOI & Ors. W.P.(C)5973/2003, the impugned order has to be set aside. Ordered accordingly. The petitioner is entitled to the consequential benefits of assignment of seniority from the date he joined the DANIPS on 10.10.1994.
6. From a perusal of the aforesaid, we have no hesitation in concurring with the learned Tribunal that the case of the respondent was squarely covered by the decision in Harish Chander Bhatia (Supra). In fact, we find that the present case would also be governed by the decision in Rajan Bhagat (Supra), wherein the Co-ordinate Bench had emphasized that the long period of service beyond six months in accordance with Rule 25 of DANIPS Rule could not be ignored while reckoning the seniority of an employee. In the light of the aforesaid, and taking into account the admitted position, where extension of the service of the respondent on purportedly ad hoc basis was granted at the specific request of the petitioner department leading to a situation where the respondent continued to serve for over six years with the petitioner, we find no reason to interfere with the impugned order.
7. The writ petition being meritless is, accordingly, dismissed along with accompanying applications leaving the question of law open.
8. The petitioners are, consequently, directed to re-fix the seniority of the respondent in terms of the impugned order and grant him all consequential benefits on notational basis within a period of eight weeks.
(REKHA PALLI)
JUDGE
(RAJNISH BHATNAGAR)
JUDGE
MARCH 19, 2024
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