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ALKA SHRIVASTAVA vs INDIAN COUNCIL OF SOCIAL SCIENCE RESEARCH & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 22nd February, 2024

+ W.P.(C) 9434/2022, CM APPL. 5716/2023 & CM APPL. 5717/2023
ALKA SHRIVASTAVA ….. Petitioner Through: Mr.M.S. Ganesh, Sr Advocate with Mr.K. Seshachary, Mr.TVS RaghavendraSreyas, Mr.Amitesh Kumar, Mr.SiddharthVasudev and Mr.Rao Raj Bahadur Singh, Advocates

versus

INDIAN COUNCIL OF SOCIAL SCIENCE RESEARCH & ORS. ….. Respondents

Through: Mr.Amitesh Kumar, Ms.Priti Kumari and Mr.Mrinal Kisho, Advocates for R-1.
Mr. K.C. Dubey, Sr. Panel Counsel with Mr. Mimansak Bhardwaj, Advocate for R-2/UOI.
Dr. S. S. Hooda, Mr.Aayushman Aeron and Mr. Ashutosh Kumar, Advocates for R-3/CAG.

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

J U D G M E N T

1. The instant petition has been filed seeking following relief:
“(i) Call for the records of the case, including, in particular, those of:
a. WP (C ) No.l3454 of 2021 entitled Alka Srivastava v. ICSSR & others, on the file of this Hon’ble Court and;
b. F No. A(47)/89- A on the files of ICSSR Respondent No.1;
(ii) hold and declare that the statement made and undertaking given on behalf of the ICSSR Respondent No.1 as recorded in paragraph 3 of this Hon’ble Court’s order dtd 02-12-2021 in WP (C) No.13454 of 2021 are a fraud upon this Hon’ble and upon the Petitioner and a nullity and constitute contempt of this Hon’ble Court;
(iii) Restore to file the Petitioners earlier WP (C ) No.13454 of 2021 and direct the same to be heard along with this WP.
(iv) Hold and declare that (a) the impugned Office Order No. 7/2021 bearing F No. A(47)/89-A dtd 18-03-2021 ( Annexure P-31),(b) the order bearing F. No. A(47)/89 -A dtd 18-03-2021( Annexure P-32) and ( c) the impugned decision bearing F.No. A(47)/89 – A dtd 04- 03-2022( Annexure P-34) are ultra vires and violative of the Petitioner’s fundamental rights under Arts. 14, 16(1) and 300 A of the Constitution, and vitiated by legal malafides;
(v) issue an appropriate writ, order or direction in the nature of Certiorarified mandamus striking down the impugned orders and decisions being dated 18.03.2021 i.e., Annexures P-31, P-32 and dated 04.03.2022 i.e., P-34 respectively as mentioned. in prayer
(iv) above and directing (a) her service proper to be counted from 13-07-1989 as recommended by the Justice Malimath Committee and already accepted and approved by the Plenary Council of ICSSR, Respondent No.1. and (b) Grant of MACP on
completion of 30 years of service w.e.f July 2019.
(vi) award compensatory and exemplary costs of this WP to the
Petitioner and against the Respondents jointly and severally; and
(vii) pass such further and other orders as this Hon’ble Court may deem”

FACTUAL HISTORY
2. The petitioner joined respondent no.1/ICSSR on 13th July 1989 as Research Assistant on ad-hoc basis for a period of six months. The services of petitioner was terminated vide office order dated 2nd February, 1990 bearing No. F. A (47)/88A with effect from 10th January, 1990.
3. The petitioner herein being an ad-hoc temporary employee was appointed periodically with a technical break of 1 day every 6 months and was reappointed as ad-hoc temporary employee from the period of 2nd January, 1990 to 22nd February, 1996.
4. The petitioner was absent from the period of 11th March, 1996 to 31st August 1996 and the respondent no.1 issued a memorandum dated 6th March, 1997 seeking her explanation for her absence during the period from 11th March, 1996 to 31st August 1996 without leave. The petitioner filed her reply to the memorandum and the respondent no.1 after considering her reply dated 12th March, 1997, permitted the petitioner to join on ad hoc basis vide order dated 19th September, 1997, subject to final decision of the respondent no.1 in the matter.
5. A High-Powered Committee chaired by Justice VS Malimath was constituted by respondent no. 1, to address the issue of regularisation of ad-hoc appointments and promotions of the ad- hoc employees including the respondent no.1 vide office order dated 19th January 1997. Pursuant to which, the Committee submitted its report on June, 1998 to respondent no. 1 with respect to various employees.
6. The respondent no.1 issued an office order bearing no. F No. 19-21/98-1 dated 14th December, 1998 regularizing their service of the other five incumbent Research Assistants as recommended by Malimath Committee.
7. Moreover, in accordance with the decision taken by the respondent no.1 in its 83rd Metting on 16th September 1998, the respondent no.1 regularised the service of the petitioner w.e.f. 1st January 1996 vide office order dated 14th December 1998 and 17th March, 1999 in the pre-revised pay scale of Rs.1640-60-2600-75-2900 (revised to Rs.5500-175-9000) with effect from 1st January, 1996. It regarded the employment break of the petitioner for 563 days as technical break on grounds of equity based on the recommendation of the Committee.
8. The Department of Personnel and Training (DoPT), Ministry of Personnel, Public Grievances and Pensions of Government of India vide OM No.35034/1/97-Estt.(D) dated 9th August, 1999 issued “the Assured Career Progression Scheme (ACP Scheme) for the Central Government Civilian Employees” for financial upgradation in Group ‘A’ ‘B’ ‘C’ and ‘D’ category posts as recommended by the 5th Central Pay Commission.
9. The respondent no.1 issued office order dated 31st May, 2000, wherein the date of regularization of petitioner remained unchanged as 1st January, 1996.
10. A copy of the gradation list of officers and staff of the Respondent No. 1 Council as on 1st January, 2001 was circulated vide office memorandum bearing no. F. No. 5-48/200 I-A dated 20th March, 2001 which stated petitioner’s date of initial appointment as 13th July, 1989.
11. The petitioner made representation to the respondent no. 1 to regularise her service w.e.f 13th July 1989 from the period of March 1999 to October 2002.
12. The respondent no.1 issued vide office order bearing no. F. No. A (47)88-A dated 29th October, 2002 in respect of petitioner’s appointment as regular employee fixing the pay on notional basis w.e.f. 13th July, 1989 and with financial benefits from 1st January, 1996. Pursuant to which, vide office order dated 8th July, 2008 bearing No. F. No. 3-4/2008-A(Vol-I) the respondent no. 1 granted the petitioner the first ACP with effect from 1st September, 2001 after the regular service of 12 years from the date of initial joining that is 13th July, 1989.
13. The policy planning and administration committee in its 65th meeting on 29th January, 2008 and endorsement of the council in its 108th meeting held on 24th March, 2008, the earlier order dated 31st May, 2000 was revoked and withdrawn with immediate effect. Hence, the order dated 17th March, 1999 was directed to be implemented. Therefore, the seniority of the petitioner was to be computed from w.e.f. 1996.
14. The petitioner was promoted to the post of Assistant Director from the post of Research Assistant by the Respondent No.1 vide Office Order Dated 9th April, 2009 bearing No. F. No. 8(15)2008-A. The petitioner topped the merit list prepared by the Selection Committee.
15. The Department of Personnel and Training (DoPT), Ministry of Personnel, Public Grievances and Pensions of Government of India vide OM No. 35034/3/2008-Estt. (D) dated 19th May, 2009 issued “the Modified Assured Career Progression Scheme (MACP Scheme) for the Central Government Civilian Employees” for financial upgradation in Group ‘A’, ‘B’, ‘C’ and ‘D’ category posts as recommended by the Fifth Central Pay Commission. The respondent no. 1 granted the Petitioner 2nd MACP w.e.f 13th July, 2009 i.e., after completing 20 years of regular service from the date of initial joining i.e. 13th July, 1989 vide office order bearing No. F.No. 10-3/2009-A dated 30th December, 2011.
16. Pursuant to the recommendations of the departmental promotion/ selection committee, the petitioner was promoted to the post of the Deputy Director by the respondent No.1 vide Office Order bearing no. F.No.3-5/2016-Admn. dated 13th April, 2018 with pay scale of Rs. 67800-208700.
17. The petitioner applied for the grant of 3rd MACP on completion of the 30 years of regular service in the respondent no.1 counted from 13th July, 1989 and she wrote a letter to the administrative officer, respondent No.1 requesting for the rectification of office order dated 29th October, 2002 issued by the respondent No.1 and her initial date of appointment is 13th July, 1989.
18. The respondent no.1 vide Office order no. 7 of 2021 bearing no. F. No. A (47)/89-A dated 18th March, 2021 issued the recovery orders on account of withdrawing the benefits of 1st ACP and 2nd MACP granted with effect from 1st September, 2001 and 13th July, 2009 respectively.
19. The petitioner received letter dated 18th March, 2021 bearing no. F No. A(47)/89-A from the respondent No.1 denying the request of the petitioner to rectify the order dated 29th October, 2002.
20. Aggrieved by which, the petitioner filed a writ petition before the Coordinate Bench of this Court bearing no. W.P(C) 13454/2021 wherein learned counsel of the respondent no.1 submitted before the Court that, on instructions from the Administrative Officer of the respondent no.1, that a committee has been formed to investigate the representation of the Petitioner and is pending decision, hence, no coercive action including recovery from the pay of the Petitioner would be taken. Accordingly, the aforesaid writ petition was disposed of vide order 2nd December, 2021 on the basis that no coercive action will be taken against the petitioner and the Committee constituted by the respondent no.1 will consider the grievances of the petitioner.
21. Pursuant to which, the respondent no.1 issued a letter bearing No. F-(47)/89-A dated 4th March, 2022 conveying its decision on the petitioner’s letter dated 9th April, 2021 that the Competent Authority of the respondent no.1 has not acceded to the request dated 9th April, 2021 of the petitioner.
22. Aggrieved by the aforesaid orders, the petitioner has filed the instant petition.
PLEADINGS PROCEEDINGS BEFORE THIS COURT
PLEADINGS
23. The petitioner had filed the instant writ petition and submitted the below stated arguments:
“The fallacy of the impugned decision is demonstrable as follows:
i. In terms of the Rule 2 of the CCS(Pension) Rules, the Rules apply only to “Government servants” and Rule 3(1)(i) defines “Government” to mean the Central Government. The CCS(Pension) Rules have no application per se to employees of autonomous bodies such as the ICSSR. [Swamy’s Pension Compilation incorporating the CCS (Pension) Rules, 24 th Edn 2020 pages 2 to 4.

ii. Similarly, the Fundamental Rules have no application to employees of autonomous bodies such as the ICSSR. FR 2 & 3 reads:
“FR 2. The fundamental rules apply, subject to the provisions of Rule 3, to all Government servants whose pay is debitable to Civil Estimates and to any other class of Government servants too which the President may, by general or special order, declare them to be applicable.”
“FR 3. Unless in any case it be otherwise distinctly provided by or under there rules, these rules do not apply to Government servants whose conditions of service are governed by Army or Marine Regulations.” [Swamy’s Compilation of FR SR, 20th Edn 2010 Part I General Rules pages 1 – 2].

iii. In the ICSSR Service Regulations 1970, approved by the Government of India vide Ministry of Education & Social Welfare Lr. No. 12-34/36 PLG II dtd 06-12-1976, the resolution referred to in the impugned decision is pasted as a typed slip:
” A copy of the resolution adopted by the Administration Committee at its 2nd meeting held on 30 Aug 1969 is reproduced below:
Item No.13: Application of General Rules and orders of the Central Government to the Council’s staff.
It was agreed that rules and orders of the Central Government may apply to the staff in matter which are not specifically covered by the Council’s own rules, regulations and orders.”

iv. It is obvious that the said resolution dtd 30-08-1969 is not and could not be – part of the approval granted on 06-12-1976 by the Central Government to the ICSSR Service Regulations 1970. There are two compelling reasons for this conclusion. First, the Central Government was and is well aware that the ICSSR is an autonomous body registered under the Societies Registration Act on 31-07-1969 and that its employees are not and could never be “Government servants” within the meaning of any statutory rules framed under the proviso to the Art. 309 of the Constitution. Secondly, the Central Government was and is also aware that if any such statutory rules are to apply to and in the ICSSR, they would necessarily have to be adopted mutatis mutandis for the purposes of the ICSSR, then framed as a set of service regulations of the ICSSR and finally approved by the Central Government. In other words, the requirement of such specific rules and regulations framed by the Council in a format analogous to that of the Central Government rules, with the previous approval of the Central Government, is a prerequisite and mandatory, as required under Rule 23 of the ICSSR’s Memorandum of Association and Rules 1969. Likewise, the Govt. of India decisions or executive instructions under the said statutory rules made in exercise of powers conferred by Art. 73 r/w Art. 53 of the Constitution would have to be adapted mutatis mutandis and adopted by a formal resolution of the Council. As a logical corollary, any adoption of such statutory rules or executive instructions by a resolution/ decision of the Council and duly approved by the Central Government must be deemed to be such an adaptation mutatis mutandis as aforesaid. Thus the application of the ACP/MACP scheme in this context of this WP is directly a case in point.

v. The same conclusion flows from another stand point as well. Assuming, without admitting, that the Council’s said resolution dtd. 30-08-1969 is applicable, it could apply only to the statutory rules or executive instructions as at that date and not to any subsequent ones. Every subsequent amendment to the statutory rules and executive instructions or promulgation of new statutory rules would have to necessarily abide the mandatory requirements of the said Rule 23 before they become applicable to the ICSSR.

21.The Petitioner says that, finding that her pay has been reduced, she requested for her salary certificate for the period January 2021 to December 2021. The salary certificate dtd
09-03-2022 for the said period issued by DDO, ICSSR reveals that, contrary to the solemn undertaking given by it to this Hon’ble Court on 02-12-2021, the ICSSR, in addition to the coercive action taken against her by the Memo dtd 01-12-2021, has taken further coercive action by making recoveries from her pay. A true copy of the said salary certificate for the period of January 2021 to December 2021 issued by DDO, ICSSR dt. 09-03-2022 IS annexed hereto and marked as Annexure P/4.

22.The Petitioner says and submits that the conduct of the ICSSR Respondent No.1 in the proceedings in her earlier WP (C ) No. 13454/2021 IS obnoxious and suffers from the following vices:
a. The statement made on 02-12-2021 before this Hon’ble Court by “learned counsel appearing for the respondent No.1 on instructions from the Administrative Officer” is a fraud upon this Hon’ble Court and renders the order passed on that basis and in good faith by this Hon’ble Court a nullity. Despite knowing full well that her said WP was directed to be listed on 02-12-2021 before the Ld. Single Judge (Coram: Hon’ble Mr. Justice V. Kameswar Rao) by a DB of this Hon’ble Court vide its Order dtd 29-11-2021, a day prior to that, on 01-12-2021, the ICSSR issued a memo to the Petitioner for having approached this Hon’ble Court. Both the Ld. Counsel and the Administrative Officer representing the Respondent No.1 in making their statement as recorded in para 3 of this Hon’ble Court’s order dtd 02-12-2021, suppressed from this Hon’ble Court the factum of issuance of the said memo. They made matters worse by serving the said memo in the afternoon of
02-12-2021, after the conclusion of the hearing before this Hon’ble Court in the forenoon of02-12-2021.
The said nullity vitiates all subsequent conduct of the so-called Administrative Committee and the ICSSR itself as a continuation of the fraud and hence as also a nullity.

b. Likewise, the undertaking given to this Hon’ble Court by the ICSSR that “till such time the Committee take a final decision, no coercive action including recovery from the pay of the Petitioner, in terms of order at page 169 of the writ petition shall be effected” as recorded in para 3 of this Hon’ble Court’s order dtd 02-12-2021, is a fraud upon this Hon’ble Court. A bare comparison of the Office Order No. 7/2021 dtd 18-03-2021 impugned in the Petitioner’s earlier WP (C ) No. 13454/2021 [Annexure P-26 at pages 169 -172] with the ICSSR’s salary certificate for the period January to December 2021 issued on 09-03-2022 shows that they continued to make recoveries from her pay even while the matter was under issue before this Hon’ble Court which was seized of the matter. The ICSSR wilfully suppressed these facts from this Hon’ble Court while giving the said undertaking.

c. Both the above aspects of fraud committed by the ICSSR, besides rendering the order obtained by such fraud a nullity, constitute brazen contempt of this Hon’ble Court. The contempt is aggravated. On 06-12-2021 the Petitioner replied to the said memo dtd 01-122021 issued to her and specifically called upon the ICSSR (Respondent No.1) and its concerned officials to do the following:
“(a) to tender forthwith on affidavit before the Hon’ble High Court (Coram Hon’ble Mr. Justice V. Kameswar Rao) an unconditional and unqualified apology for issuing the memo bearing F No. A(47/89-A dated 01- 12-2021; and
(b)to tender likewise an affidavit before the Hon’ble High Court of Delhi (Coram Hon’ble Mr. Justice V Kameswar Rao) unreservedly withdrawing your memo under reference. ”
d. To date, the Petitioner has received no response from the ICSSR to her said reply dtd 06-12-2021 nor, to the best of the Petitioner’s knowledge, has the ICSSR complied with the above quoted requisitions.
e. The Petitioner submits that the above conduct of the concerned officials of the ICSSR and those representing the ICSSR, both by act and omission, are civil as well as criminal contempt of this Hon’ble Court.
f. The said conduct constitutes civil contempt for two reasons. First, it amounts to wilful disobedience to the order and process of this Hon’ble Court commencing with the Order dtd 29-11-2021 in WP (C) No. 13454/2021 passed by the DB of this Hon’ble Court. Secondly, it constitutes wilful breach by the persons aforesaid of the undertaking given to this Court as recorded in para 3 of the Court’s order dtd 02-12-2021.
g. The said conduct also constitutes criminal contempt of this Hon’ble Court, again for two reasons. The memo dtd 01-12-2021 issued by the ICSSR lowers the authority of this Hon’ble Court and interfered with the due course of the judicial proceedings in the Petitioner’s WP No. 13454/2021 and obstructed the administration of justice by pre-empting the authority and dignity of this Hon’ble Court.
h. Accordingly, by way of a contempt petition in the said WP (C) No. 13454/2021 and as a necessary adjunct to this WP, the Petitioner is filing a substantive contempt petition arising out of and in virtue of this Hon’ble Court’s order dtd 02-12-2021 in the said WP (C) No. 13454/2021.
i. The Petitioner says and submits that it is in the above setting that this Hon’ble Court may be pleased to appraise and adjudicate upon the present WP.
j. The Petitioner further says and submits that on the facts and in the circumstances of the present case, especially since this Hon’ble Court’s said Order dtd 02-12-2021 has been rendered a nullity by the conduct of the ICSSR Respondent No.1, her earlier WP (C) No.13454/2021 is liable to be restored to file and adjudicated along with the present WP and inter alia, prays accordingly.
k. In the above light, the Petitioner impugns in this WP the following office orders/communications issued to her by ICSSR: i. Office order No. 7/2021 bearing FNo. A(47)/89-A dtd 18-032021( Annexure P- 31 ).

ii. Letter bearing FNo. A(47)/89-A dtd 18-03-2021 issued to the Petitioner by ICSSR Respondent No. 1 ( Annexure P- 32 ).

iii. Letter bearing FNo. A(47)/89-A dtd 04-03-2022 issued to the Petitioner by ICSSR Respondent No.1 ( Annexure P- 34 ).”

24. In response to the present petition, the respondent no.1 had filed his reply/counter affidavit, opposing the present petition by advancing the following arguments:
“62. That keeping in view the findings arrived at by the administrative committee and recommendations thereof, the ICSSR vide its letter dated 04.03.2022 did not accede to the request of the Petitioner as contained in her representation dated 09.04.2021. A true copy of letter dated 04.03.2022 of ICSSR is annexed herewith and being marked as ANNEXURE. R.51.

63. That it is submitted that high powered committee recommended regularisation of the service of the Petitioner w.e.f. 01.01.1996. As per office order dated 29.10.2002, though the pay of Petitioner was fixed on notional basis w.e.f. 13.07.1989 i.e. the date of her entry into the service as per rules, however, as per para 3 of the said office order, the national fixation of pay did not confer any right to the Petitioner to claim any “seniority & regularization from the date of her initial appointed”. The Petitioner neither represented against the said office order dated 29.10.2002 nor challenged the same except submitting a
belated representation dated 21.09.2019 after the lapse of almost 17 years. It is further submitted that grievances of the Petitioner have still been considered by the Committee and the Committee has given clear finding that the request of the Petitioner for counting of her regular service w.e.f. 13.07. 1989 in place of 01.01.1996 cannot be considered.
in view of the above, the ICSSR is completely justified in rejecting the belated representation of the Petitioner by passing the letter dated 04.03.2022.

64. That it is further submitted that Department of Personnel and Training, Ministry of Personnel Public Grievances and Pensions and its office memorandum of 09.08.}999 notified the Assured Career Progression (ACP) Scheme for Central Government Civilian Employees. As per Para 3, it was notified to grant two financial upgradations to Group “B”, “C” and “D” employees on completion of 12 years and 24 years of regular service respectively. It was stipulated that certain categories of employees such ag Casual Employees (including those without temporary status), Ad-hoc and Contract Employees shall not qualify for benefits under the scheme. it is submitted that in Para 3.2 of the Scheme, it was specifically stipulated as under: –
“3.2 Regular Service for the purpose of the ACP Scheme shall
be interpreted to mean the eligibility service counted for
regular promotion in terms of relevant Recruitment/Service Rules.”
A true copy of office memorandum dated 09.08. 1999 of Department of Personnel and Training, Ministry of Personnel, Public Grievances and pensions is annexed herewith and being marked as ANNEXURE R-52
65, That subsequently, the DoPT vide OM dated 10.02.2000 issued various clarifications “on point of doubt” in relation to ACP Scheme It is submitted that vide the said OM, the fallowing clarification was provided in relation to point of doubt No. 11: –

A true copy of DOPl’ OM dated 10.02.2000 is annexed hwewith and being marked as ANNEXURE R-53.
66. That subsequently, the MHRD (now Ministry of Education), Government of India vide its letter dated 19.12.2011 conveyed its approval for grant of Modified Assured Progression Scheme (MACPS) to all categories of ICSSR to whom the benefit of 6th Payment Commission K’ as approved by the Government of India vide order dated 26.03.2010.

67. That it is subrnitted that in terms of the OM dated 09.08.1999 read with OM dated 10.02.2000 of DOPT, “only regular service which counts for purpose of regular promotion in terms of relevant Recruitment/ Rules shall count for the purpose of upgradation under ACPS”.
As the Petitioner has been regularized w.e.f. al,01.1996 therefore the Petitioner is in entitled for grant of financial benefits under ACP/MACP by counting her regular service only w.e.f. 01.01.1996 and also keeping in view the findings recorded by the committee in para 3 of its report. ‘ I-bus, the ICSSR is completely justified in issuing the office order dated }8.03.2021 withdrawing the benefits of Ist ACP and 2nd MACP granted to the Petitioner w.e.f. 01,09,2001 and 13.07.2009
respectively and waxing her financial benefits.
68. That it is further submitted that so far as the grievances raised by the Petitioner in respect of memo dated 01.12,2021 is concerned, it is respectfully submitted that the ICSSR vide its communication dated. 20.07.2022 has already withdrawn the said memo under intimation to the Petitioner and the Petitioner has received the said communication on 20.07.2022 itself A true copy of memo dated 01.12.2021 and 20.07.2022 of ICSSR are annexed herewith and being marked as ANNEXURE R-54 (Colly).
69. That in view of the aforesaid writ petition filed by the Petitioner does not merit consideration and is liable to be dismissed by this Hon’ble Court.”

25. In response to the present petition, the respondent no.3 had filed his reply/counter affidavit, opposing the present petition by advancing the following arguments:
“7. That it is submitted that during the audit of Respondent No.1/ICSSR, the answering Respondent found some irregularities with respect to the Assured Career Progression (ACP) scheme benefits granted to its Grade ‘A’ officers by the Respondent No.1. Accordingly, the answering Respondent raised an Audit Objection regarding such irregularities in its Audit Inspection report for the period 2009-2011.
8. That it is submitted that the Department of Personnel and Training (DOP&T) vide its Office Memorandum bearing No. 35034 /1/97-Estt(D) dated 09.08.1999 had introduced Assured Career Progression (ACP) scheme for the Central Government civilian employees in all ministries and Departments.
9. That it is submitted that as per the above-mentioned Office Memorandum, the said ACP scheme was introduced only for employees who had completed either 12 or 24 years of regular service. Moreover, as per the said Office Memorandum, no financial up gradation was proposed for employees.
X X X
12.That it is submitted that the answering respondent in terms of the Office Memorandum dated 09.08.1999 and the GFR, 2005 while carrying out audit of The Respondent No.1/ICSSR for the period 2009-2011 raised the objection that in violation of the GFR, 2005 the Respondent No.1/ICSSR without prior approval of the Ministry of Finance granted benefits of ACP scheme to Group ‘A’ officers which is in contravention to the said Office Memorandum dated 09.08.1999. It was further observed that the Respondent No.1/ICSSR granted the said benefits to employees on completion of 12/8 years whereas, the
said Memorandum granted benefits of ACP scheme to employees only on completion of either 24 or 12 years of service.”

26. The petitioner has filed rejoinder to the counter affidavit of the respondent no. 1. The relevant extract of the rejoinder is as follows:
“2. It is submitted that in paragraph 44 the counter affidavit adverts to and quotes from an office order dated.29.10.2002 (Annexure R-35 at Page 109). The said office order refers to some writ petition filed by some adhoc employees of the Council. However, the deponent does not say that this petitioner was(is a party to the said writ petition. In fact, she is not. Neither the said office order nor the counter affidavit discloses either the number of the writ petition nor states as to whether it is pending or has since been disposed of. Nor even does the deponent plead as to what relevance or application the said writ petition and proceedings therein have to the petitioner’s case in her present writ petition and the reliefs claimed therein.

3. Likewise, in paragraph 47 of the counter affidavit~ the deponent has referred to and quoted from an alleged undertaking given by the petitioner. The deponent has neither disclosed the date of the alleged undertaking or annexed that document nor has pleaded as to what relevance or application the same has to her present writ petition and the reliefs prayed for herein.

4. As it is, Respondent no. 1 and its concerned officials are facing contempt proceeding before this Hon’ble Court in the Petitioner’s contempt petition being Contempt Case (C) No. 624 of 2022 entitled Alka Shrivastava vs. Indian Council of Social Science Research and Others for willful breach of the order date 02.12.2021 passed by this Hon’ble Court in her earlier WP (C) 13454 of2021. On the very day i.e., 02.12.2021, that the respondents gave an undertaking to this Hon’ble Court that no coercive action shall be taken against her, the respondents served her with a memo threatening her with disciplinary proceeding for having approached this Hon’ble Court. The said contempt proceeding is now fixed for hearing on 10.10.2023.

5. The counter affidavit contains no para-wise traverse of the averments in the Writ Petition. As such, all the factual averments in the Writ Petition stands admitted by non traverse, on the principles underlying Order VIII Rule 3 to Rule 5 of the CPC, 1908. On those principles, the general and bald denial in paragraph 72 of the counter affidavit is of no avail to the respondents.
6. The counter affidavit is unduly prolix and repetitive. It purports to set out a narrative and annexes documents which are already pleaded and annexed to the Writ Petition. The counter affidavit is calculated to make it appear ~ I that there are factual controversies, when, in fact, there are none.

7. The crux of the petitioner’s case lies in and flows from the recommendation of the High-Powered Committee (HPC) (Justice V. S. Malimath Committee) specifically regarding the Petitioner and the admitted acceptance of those recommendations by the ICSSR. Admittedly, further, the ICSSR acted on its acceptance on those specific recommendations. However, the Respondent once again sought to obfuscate the issue and to willfully mislead this Hon’ble Court once again, as they had done in the Petitioner’s earlier WP (C) 13454 of 2020 for which they are facing contempt proceeding in Contempt Case (C) No. 624 of 2022 pending before this Hon’ble Court. Indeed, by their statements in paragraph 45 onwards of their counter affidavit the respondents have aggravated the said contempt. The untruthful and dishonest and shifting stands of the Respondents are exposed below.
8. Vis-a-vis the Petitioner, specifically the HPC made two findings and recommendations (see the WP pages 47 to 49 para ‘h’ read with Annexure P-17 (colly) pages 160 to 195): a. She was first appointed on 13.07.1989 (see the WP at page 179 first sentence; and b. She shall be given notional fixation from that date, viz -13.07.1989 and financial effect from 01.1.1996 but with the further condition that no arrears shall be paid for the period between 11.3 .1996 and 25.09.1997 (see the WP at page 195 last paragraph).

9. Although in para 38 of counter affidavit the Respondents have purported to quote from HPC recommendations and to annexed abstracts there from as Annexure R-30 at pages 99-100, the Respondents have willfully withheld from this Hon’ble Court the crucial recommendations as abstracted in the WP at page 195.”

27. The petitioner and the respondent no. 1 have also filed their judgment compilations as well as the written submissions.
PROCEEDINGS BEFORE THIS COURT
(submissions on behalf of the petitioner)
28. Mr. M.S. Ganesh, learned senior counsel appearing on behalf of the petitioner submitted that the respondent no.1 erred in passing the impugned order since the petitioner is entitled for regularization from the year 1989 and not from the year 1996.
29. It is submitted that the impugned Office Order dated 18th March, 2021 and the decision dated 4th March, 2022, passed by the respondent no.1 and all antecedent acts and omissions of the respondent No.3, respondent No.2 and the respondent No.1 are without any jurisdiction and authority.
30. It is submitted that the statement made, and undertaking given by and on behalf of the respondent No.1 on the basis of which WP(C) 13454/2021 filed before this Court was disposed vide Order dated 2nd December, 2021 are a wrongful submissions.
31. It is further submitted that the learned counsel for the respondent no. 1 suppressed the fact from the Court that the respondent no.1 on 1st December, 2021, had issued a memo to the petitioner demanding her explanation for having approached this Court by way of the writ petition.
32. It is further submitted that the Central Government’s statutory rules and the respondent no.1’s service regulations were cited as justification in the aforesaid memo dated 1st December, 2021 have no application to the petitioner’s case in and the subject matter of her WP (C) 13454/2021 since the petitioner is not a Central Government employee.
33. It is submitted that the petitioner as per the service protocol and discipline, the petitioner submitted a detailed reply dated 6th December, 2021 to the aforesaid memo.
34. It is submitted that the plenary Council of the respondent no.1 had accepted the said recommendations, in the year 1998, it could not be revoked as an afterthought by the respondent no.1, especially without giving notice to the petitioner.
35. It is further submitted that as per the impugned decision dated 4th March, 2022, which states that the Competent Authority of the respondent no. 1 has not acceded to the request dated 9th April, 2021 of the petitioner. However, the respondent no.1’s competent authority has no jurisdiction, power or authority to override the decision made by the Plenary Council in 1998 in respect of the petitioner.
36. It is submitted that the impugned decision dated 4th March, 2022 is also internally inconsistent, self-contradictory, and self- defeating. It admits unequivocally that the report of the Justice Malimath Committee has “already been accepted by the Competent Authority” vide sub-para 1 of the penultimate para of that decision. Since, the terms of reference of the Justice Malimath Committee included inter alia all those who are holding the post of Research Assistants Grade I. Hence, all other assertions and arguments advanced in the impugned decision does not hold any water.
37. It is further submitted that the petitioner being at the position of Research Assistants Grade I was qualified to be regularised from her initial date of appointment i.e. in the year 1989 and not from the year 1996.
38. It is submitted that when the State qua employer makes a reference to a Pay Commission in respect of a set of employees and it accepts the recommendations, it is bound to implement the recommendations in respect of all such employees.
39. It is submitted that when an autonomous department or board of the State (analogous to a body such as the respondent no.1) makes such a reference to a Pay Committee in respect of its employees and accepts such committee’s recommendations, it is bound to give the benefit of the recommendations to all employees covered by the terms of reference and not confine such benefit only to some of them.
40. It is submitted that the respondent no.1 must implement the accepted recommendations from the same date in respect of all employees covered by the Pay Commission and it is not open to the State to deny the benefit of the revised grade and scale w.e.f. a particular date as in the case of all other persons merely because of some administrative difficulties as the same would be discriminatory.
41. It is submitted that the respondent no.1 has been wrongly recovering the financial benefits granted to the petitioner vide MACP and ACP scheme. The petitioner is legally entitled to the aforesaid financial benefits.
42. It is further submitted that the respondent no.1 has malafidely passed the impugned recovery order against the petitioner.
43. It is submitted that the respondent no.1, that the impugned orders and decision of the respondent no. 1 are not merely ultra vires of petitioner’s fundamental rights under Articles 14, 16(1) and 300 A of the Constitution of India but also vitiated by malafide (mala prohibita).
44. It is submitted that in view of the foregoing submissions, the instant petition may be allowed and the reliefs as prayed for may be granted.

(submissions on behalf of the respondent)

45. Per Contra, learned counsel appearing on behalf of the respondent no.1 vehemently opposed the instant petition and submitted that the instant petition, being devoid of any merit, is liable to be dismissed.
46. It is submitted that the impugned orders passed by the respondent no. 1 are in due compliance with the statutory rules and does not suffer from any illegality.
47. It is submitted that respondent no.1 vide its order dated 13th July, 1989 appointed the petitioner as Research Assistant on “ad hoc basis” for a period of six months with the specific stipulation that the appointment will not confer any right on her for any regular appointment with the respondent no. 1. Thereafter, the respondent no.1 issued various orders from time-to-time appointing petitioner on ad-hoc basis for fixed periods with break in between on similar terms during the period of 12th January, 1990 till 25th March, 1998.
48. It is further submitted that during the said period of ad-hoc appointment, the respondent no.1 had also issued a memorandum dated 06th March, 1997 seeking her explanation for her absence during the period from 11th March, 1996 to 31st August 1996 without leave and after considering her reply dated 12th March, 1997, the petitioner was permitted to join on ad hoc basis vide order dated 19th September, 1997, subject to final decision of the respondent no.1 in the matter.
49. It is submitted that the high-powered committee in Para 2.18.14 of its report has stated that the petitioner did not have any order of appointment in her favour between 1st September, 1996 and 25th September, 1997 hence, she did not perform duty during the said period not on account of any lapse on the part of the council.
50. It is further submitted that the high-powered committee in Para 2.18.15 has recommended that the services of petitioner be regularized in relaxation of the relevant rules and given notional fixation of pay w.e.f. 1st January, 1996, as has been recommended in all other cases, subject to the condition that no arrears shall be paid for the period of her absence from 11th March, 1996 to 25th September, 1997.
51. It is submitted that as per decision taken by the respondent no.1 in its 83rd Meeting held on 16th September, 1998, the respondent no.1 regularized the services of the petitioner in temporary capacity as Research Assistant w.e.f. 1st January, 1996 vide office order dated 17th March, 1999 was issued in this regard. Thereafter, the respondent no.1 issued office order dated 24th August, 1999 refixing the pay of petitioner w.e.f. 01st January, 1996.
52. It is submitted that the respondent no.1 issued another office order dated 31st May, 2000, the date of regularization of petitioner remained unchanged as 1st January, 1996 and it was specifically stipulated that the petitioner will be treated as junior to the regular employees of the respondent no.1 as on 1st January, 1996 in his/her cadre. Hence, the benefit of past services of the ad-hoc employee will not count for any purpose pending the decision to be taken by a committee formed for the purpose as per order of the Chairman of the respondent no.1.
53. It is further submitted that petitioner submitted two representations dated 12th July, 2001 and 1st March, 2002 seeking rectification of her notional pay fixation as on 1st January, 1996. The said representations were rejected vide Memo dated 19th March, 2002 and 10th April, 2002 respectively. Pursuant to which, the respondent no.1 issued an office order dated 29th October, 2002 fixing the pay of petitioner on notional basis w.e.f. 13th July, 1989 subject to certain conditions which included a condition that the notional fixation of pay shall not confer any right to petitioner to claim any seniority and regularization from the date of her initial appointment.
54. It is submitted that in view of the decision taken by the Policy Planning and Administration Committee (PPAC) in its 65th meeting held on 29th January, 2008 and endorsement of the Council in its 108th meeting held on 24th March, 2008, the respondent no.1 issued an office order dated 24th April, 2008 whereby, the earlier office order dated 31st May, 2000 was revoked and withdrawn with immediate effect and consequently, the Office order dated 17th March, 1999 based upon the decision taken by Council in its 83rd meeting held on 16th September, 1998 was directed to remain effective.
55. It is submitted that the respondent no.1 issued office order dated 08th July, 2008 and office order 30th December, 2011 extending the benefit of ACP and MACP respectively to petitioner by erroneously counting her date of initial appointment on ad hoc basis i.e. 13th July, 1989 instead of regular service rendered by her regularization w.e.f. 01st January, 1996.
56. It is submitted that in view of audit report for the period 2009-11 in respect of respondent no.1 forwarded by the office of Director General of Audit (Central Expenditure) by their letter dated 01st August, 2011 wherein objection was pointed out in respect of irregular grant of benefit of ACP etc., the Department Screening Committee of the respondent no.1 in its meeting held on 30th September, 2019 noted that though the petitioner was regularized w.e.f. 1st January 1996, however, she was granted lst ACP w.e.f. 01st September, 2001 and 21st MACP w.e.f. 13th July, 2009 by counting her service from the date of her ad hoc appointment i.e. 13th July, 1989. Accordingly, the committee recommended that lst ACP granted to her may be made effective from 1st January 2008 and 2nd ACP from 1st January 2016.
57. It is further submitted that after delay/lapse of 17 years, petitioner submitted a representation dated 21st September 2019 for substituting the word “on” in place of the word “and” in Para 3 of the office order dated 29th October 2002. The said representation was followed by another representation dated 13th March 2020. The representation dated 21st September 2019 was rejected by the respondent no.1 vide its letter dated 18th March 2021.
58. It is submitted that the respondent no.1 vide its office order dated 9th September 2021 constituted a three members committee to consider the representation of petitioner regarding regularization of her service w.e.f. 13th July 1989 instead of 1st January 1996.
59. It is submitted that the three members committee thoroughly examined the entire factual position and submitted its detailed report. The committee has specifically recommended as under that the substitution of the word ‘and’ with ‘on’ cannot be done in the recommendations of the High Powered Committee as the report of the committee already been accepted by the Competent Authority. Moreover, the recommendations of the High-Powered Committee cannot be changed or modified by any other committee as even more substitution of the word “and” with “on” has huge implications. Hence, the request of petitioner, Deputy Director for counting of her services as regular w.e.f. 13th July1989 instead of 1st January 1996, cannot be accepted as it is beyond rationality and is devoid of any merit. Accordingly, the respondent no.1 issued the impugned communication dated 4th March 2022 rejecting the petitioner’s representation dated 9th April 2021 regarding her claim of rectification of date of regularization of her service w.e.f. 13th July 1989 instead of regularization of her service w.e.f 01st January 1996.
60. It is submitted that high powered committee itself recommended regularization of service of the petitioner only w.e.f. 1st January 1996. Accordingly, the respondent no.1 issued order 17th March 1999 regularizing the service of petitioner only w.e.f. 1st January 1996. All subsequent office orders issued by respondent no.1 clearly stipulate that service of petitioner is regularized only w.e.f. 1st January 1996.
61. It is submitted that the office order dated 31st May 2000 stipulates that benefit of past service of the ad hoc employee will not count for any purpose and her service stands regularized w.e.f. 1st January 1996. Thus, it is the service of petitioner was regularized only w.e.f. 1st January 1996 and the petitioner neither has any statutory /vested right nor entitled to claim regularization of her service w.e.f. 13th July 1989.
62. It is further submitted that initially petitioner was appointed on ad hoc basis for fixed period w.e.f. 13th July 1989 in contravention with the recruitment rules and no process of recruitment was followed for her appointment on ad hoc basis.
63. It is submitted that the high-power committee recommended regularization of service of petitioner on equitable considerations and in relaxation of relevant rules. Thus, once initial appointment of the petitioner on ad hoc basis was not in accordance with rules, the petitioner is not entitled to count her past ad hoc service for any purpose and the petitioner is not entitled to claim regularization w.e.f. 13th July 1989 in place of regularization granted to her w.e.f. 1st January 1996.
64. It is submitted that the Hon’ble Supreme Court has repeatedly held that the person who is appointed purely on ad hoc basis for a fixed period without following the recruitment /selection rule and process, is not entitled for counting of past ad hoc service for any purpose including seniority. In the instant petition, the petitioner was initially appointed on ad hoc basis for fixed period without following the recruitment /selection rules & process, the petitioner is not entitled to counter her past ad hoc service w.e.f. 13th July 1989 in place of regularization granted to her w.e.f. 1st January 1996.
65. It is submitted that DOPT vide its once memorandum of 9th August 1999 notified the Assured Career Progression (ACP) Scheme, which is applicable to respondent no.1. As per Para 3 of the said office memorandum, two financial upgradations to Group “B”, “C” and “D” employees on completion of 12 years and 24 years of regular service respectively is contemplated. Para 3.2 of the OM clearly stipulates that certain category of employees such as Casual Employees (including those without temporary status), Ad-hoc and Contract Employees shall not qualify for benefits under the scheme.
66. It is submitted that as per the Scheme, service of an ad hoc employee, whose service was subsequently regularized, will not be counted for the benefit of ACP
67. It is submitted that in terms of the office memorandum dated 9th August 1999 read with OM dated 10th February 2000 of DOPT, the petitioner has been regularized w.e.f. 1st January 1996 therefore, the petitioner is entitled for grant of financial benefits under ACP/MACP by counting her regular service only w.e.f. 1st January 1996. Thus, the respondent no. 1 is completely justified in issuing the office order dated 18.03.2021 withdrawing the benefits of 1st ACP and 2nd MACP granted to the petitioner w.e.f. 1st September 2001 and 13th July 2009 respectively and refixing her financial benefits.
68. It is further submitted that the Hon’ble Supreme Court of India in the matter of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh1 has held that the principle enunciated in Para 10 of the judgment in State of Punjab Vs. Rafiq Masih2 cannot apply to a situation where the employee concerned was placed on notice that any payment found to have been made in excess would be required to be refunded and the employee furnished an undertaking while opting for the revised pay scale. Hence, the employee is bound by the aforesaid undertaking.
69. It is submitted that in the present matter, the petitioner submitted her two undertakings to the effect that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment, will be refunded by her or the same may be deducted from her salary. In view of the above and keeping in view the principle laid down by the Hon’ble Supreme Court of India in the aforesaid matter of Jagdev Singh (Supra), the respondent no.1 is completely justified in issuing the impugned office orders.
70. It is submitted that once the petitioner has submitted the aforesaid undertaking/declaration for refund/adjustment of excess financial benefits extended to her, then the petitioner is not entitled to turn around and challenge the recovery.
71. It is further submitted that order regularizing the service of petitioner w.e.f. 1st January 1996 was issued on 17th March 1999 followed by office order dated 24th August 1999 and 31st May 2000. Her representations dated 12th July 2001 and 1st March 2002 were rejected vide Memo dated 19th March 2002 and 10th April 2002 respectively. The petitioner did not choose to challenge either the aforesaid office orders dated nor aforesaid rejection of her two representations hence, the said decisions attained finality.
72. It is submitted that as per office order dated 29th October 2002, though the pay of petitioner was fixed on notional basis w.e.f 13.07.1989 i.e. the date of her entry into the service as per rules, however, as per para 3 of the said aforesaid order, the notional fixation of pay did not confer any right to the petitioner to claim any “seniority & regularization from the date of her initial appointment”.
73. It is submitted that the Petitioner neither represented against the said office order dated 29th October 2002 nor challenged the same except submitting a belated representation on 21st September 2019 after the lapse of almost 17 years.
74. It is submitted that the claim made by the petitioner by way of aforesaid representation suffers from well recognized principle of laches & delay as well as acquiescence.
75. It is submitted that person who does not challenge the wrongful action and acquiesced the same cannot claim any benefit at a belated stage merely based on submission of representation.
76. It is further submitted that it is a well settled that merely submission of repeated representations can neither give rise to cause of action nor can have the effect of condoning delay & laches.
77. Learned counsel for the respondent no. 3/ Comptroller and Auditor General of India submitted that t in the instant writ petition the relief is sought only qua respondent No.1challenging various actions taken by them and no relief is sought against or from the answering Respondent. Therefore the respondent no.3 is not a necessary party in the instant writ petition.
78. It is submitted that the jurisdiction/ mandate of the respondent no. 3 is governed by Articles 149-151 of the Constitution of India as further elaborated by the Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act 1971. Further, the statutory rules of the respondent no.1 mandate the respondent no. 3 to carry out its Audit annually.
79. It is further submitted that being the statutory Auditor, it is the duty of the respondent no. 3 to point out if any amount has been released to any entity in contravention to the Rules. Any audit objection raised by the respondent no. 3 is recommendatory in nature and if the auditee in the working of whom such objection is raised finds merit in the recommendations of the answering respondent, then such auditee department is free to take remedial actions.
80. It is submitted that during the audit of respondent No.1, the respondent no. 3 found some irregularities with respect to the Assured Career Progression (ACP) scheme benefits granted to its Grade ‘A’ officers by the respondent No.l. Accordingly, the respondent no. 3raised an Audit Objection regarding such irregularities in its Audit Inspection report for the period 2009-2011.
81. It is submitted that as per the the ACP scheme was introduced only for employees who had completed either 12 or 24 years of regular service. Moreover, as per the said Office Memorandum, no financial up gradation was proposed for Group ‘A’ employees and therefore, the ACP scheme was to be adopted for Group ‘A’ central government employees.
82. It is submitted that the classification of posts in Recruitment Rules of respondent No. 1 is different from the classification of posts done in Recruitment Rules of Central government employees.
83. It is further submitted that as per the Recruitment Rules of the respondent No. 1 the posts of Director, Deputy Director and Assistant Director have been classified as Group V however, the respondent No.1 treats these posts in terms of Group ‘A’ central government employees. Therefore, since the respondent No.1 treats these posts as Group ‘A’ central government employees, it needs prior approval from the Ministry of Finance to bestow any benefit to employees of these posts which is not granted to Group ‘A’ central government employees.
84. It is submitted that the respondent no. 3 while carrying out audit of the respondent No.1 for the period 2009-2011 raised the objection that the respondent No.1 without prior approval of the Ministry of Finance granted benefits of ACP scheme to Group ‘A’ officers which is in contravention to the said Office Memorandum dated 9th August1999. It was further stated that the respondent No. 1 granted the said benefits to employees on completion of 12/8 years whereas, the said Memorandum granted benefits of ACP scheme to employees only on completion of either 24 or 12 years of service.
85. It is submitted that pursuant to the audit objection raised by the respondent no. 3, the respondent No.1 vide impugned Order dated 18th November 2019 initiated recovery proceedings against the Petitioner with respect to irregular payments made to him. In this regard, it is submitted that the answering respondent’s role is only limited to auditing the accounts of the respondent No.1 and to highlight irregularities through inspection reports.
86. It is submitted that the respondent no.3 has only fulfilled its statutory duty of highlighting irregular payments made by the respondent No.l and has no say in the recovery proceedings initiated by the respondent No. 1.
87. In view of the submissions made above, it is submitted that the instant petition is devoid of merit, hence is liable to be dismissed by this Court.
ANALYSIS AND FINDINGS
88. The matter was heard at length with arguments advanced by the learned counsels on both sides. This Court has also perused the entire material on record. This Court has duly considered the factual scenario of the matter, judicial pronouncements relied on by the parties and pleadings presented by the learned counsel of the parties.
89. It is pertinent to note that vide order dated 26th July 2023, it has been submitted by the learned senior counsel for the petitioner submitted that the petitioner does not press the matter qua prayer (i), (ii), (iii) before and requested that the instant petition to be adjudicated qua prayer (iv) and (v).
90. It is the case of the petitioner that the petitioner is entitled to regularization w.e.f. 13th July 1989 instead of 1st January 1996. It is further contended that the respondent no. 1 is wrongly recovering financial benefits from the petitioner granted from the date of petitioner’s date of ad- hoc joining i.e., 13th July 1989 and the petitioner is duly entitled to the said financial benefits.
91. In rival contentions, the respondent no. 1 has submitted that it has acted in accordance with the statutory mandates and the petitioner cannot be granted regularization from w.e.f. 13th July 1989 since, the petitioner did not attend office for 563 days which the Malimath Committee on grounds of equity regarded as technical break. It is further submitted that the petitioner that the Malimath Committee has recommended the petitioner’s regularization w.e.f. 1st January 1996 and accordingly, the respondent no. 1 has regularized the position of the petitioner. Moreover, the order granting financial benefits granted to the petitioner from her ad- hoc joining date i.e. 13th July 1989 has been erroneously passed therefore, the said office order was eventually rectified.
92. It is contended that the recovery of the financial benefits wrongly granted to the petitioner is not violative of any legal right of the petitioner since, the petitioner had signed undertakings that in case the petitioner wass paid any excess amount by the respondent no. 1, it is entitled to recover the same from the petitioner.
93. Tersely stated, the two issues before this Court is-
a. Whether the petitioner is entitled to regularization from her initial date of joining i.e., 13th July 1989
b. Whether the recovery of the benefits by the Respondent no. 1 granted to the petitioner under ACP/ MACP illegal
94. Now adverting to adjudication of the first issue.
95. It is a settled position of law that regularization cannot be sought as a matter of right. It is a discretion vested with the employer/public authorities hence, they are clothed with the power to grant regularization to its employees. It is a policy decision taken by the said public authority who has requisite competence and power to take executive policy decisions.
96. An ad- hoc employee may seek regularization on two conditions i.e., firstly, initial appointment must be done by the competent authority and secondly, there must be a sanctioned post on which the daily rated employee must be working.
97. Regularization is usually not a mode of appointment at various posts in public offices and to ensure equality, a great amount of importance has been that all the eligible candidates to a particular position shall be given an opportunity to appointment. Hence, any back- door appointment done has been held to be constitutionally impermissible since it is violative of Articles 14 and 16 of the Constitution of India.
98. In cases where there is a departure from the rule of granting equal opportunity to all candidates and an ad- hoc employee is regularized, the public authority regularizing such employee shall ensure that there is due compliance of the statutory rules and their actions are within the four corners of the delegated power of the Authority concerned.
99. Now addressing the issue of doctrine of legitimate expectation pertaining to regularisation of employees, it is a settled position of law that the said doctrine can be applied in cases, where the decisions of the public authority deprive a person from certain benefits which he had given in the past, they were permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue until there has been a communication made to him regarding the withdrawal of the said financial benefit. Certain rational grounds for withdrawing it on which he had an opportunity to present his case or an assurance has been given by the decision maker that they will not deprive him of the benefits without giving him an opportunity of representing his case why his benefits should not be withdrawn.
100. The Hon’ble Supreme Court in the landmark judgment of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors.3, has reiterated the scope of regularization of an ad- hoc employee. The relevant extract of the judgment has been reproduced herein below:

“43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm’s length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in th