Basant Kumar & Ors. v. Election Commission of India & Anr.

16. She submitted that, direct recruits had made representation to the seniority list by stating that 100% of LDC appointments are to be made through SSC and if qualified staff is not available through SSC, the ECI shall fill the posts through Employment Exchange on short term basis but in no case on regular basis and hence they cannot be senior to the direct recruits. The ECI rejected the representation and approved the seniority list placing the ad hoc appointees over the direct recruits.

17. She stated that the appointment / regularisation / confirmation of ad hoc appointees is valid as they were appointed as per the statutorily permissible procedure, albeit an alternative method was followed at the time of their appointment / regularisation. In fact, she heavily relied upon Recruitment Rules to contend that the Recruitment Rules provides for appointment through Employment Exchange in case of any exigencies and the ECI had to regularise the ad hoc appointees for valid reasons. She submitted that there is no arbitrariness in the appointment / regularisation / confirmation of the ad hoc appointees.

18. According to her, the ad hoc appointees were appointed on ad hoc basis in 1991-94, when some of the direct recruits were not even eligible for appointment as LDC in the ECI. The ad hoc appointees have been rightly granted the seniority on the post of LDC, when admittedly; the direct recruits were not even born in the cadre. She also stated that the contention of the direct recruits that the Uma Devi (supra) will not apply to the ad hoc appointees is completely misplaced argument.

19. She also stated that the judgment in Uma Devi (supra), contemplates regularisation to those who had completed 10 years of service and it has a retrospective operation. She contested the finding of the Tribunal that, no methodology or direction is provided in Uma Devi (supra) for regularisation of illegal appointments. She stated the finding is erroneous because the judgment is a code by itself and it is held that, those who had completed 10 years of service are entitled to regularisation which shall also include seniority.

20. She in support of her submissions has relied upon the judgments in the cases of Pratap Kishore Panda and Others v. Agni Charan Das and Others, (2015) 17 SCC 789; Ashok Kumar Uppal v. State of J&K, (1998) 4 SCC 179; State of U.P. v. Ashok Kumar Shrivastava, (2014) 14 SCC 720; and Direct Recruit Class II Engineering Officers Assn v. State of Maharashtra, (1990) 2 SCC

715.

21. She submitted that the Director of Department of Personnel & Training („DoP&T‟, for short) had in the reply seeking relaxation to the Recruitment Rules wrote to the Joint Secretary, Legislative Department vide D.O. No.29018/4/92-Estt(B), dated June 09, 1995, that any proposal requiring relaxation /amendment of the RRs for the posts of Assistant in ECI require approval of the DoP&T as well as UPSC whereas in respect of UDC, such approval would not be necessary as Ministry / Departments have already been delegated the power to frame /amend /relax the rules for Group C & D posts.

22. She stated that from the perusal of the Rules of 1988, it is clear that the power to relax is available and it is a fact that ECI regularised the LDC‟s in a phased manner from 1993 to 1996 after satisfying the work experience and performance of the ad hoc appointees.

23. In her submissions, Ms. Arora highlighted the fact that the ad hoc appointees fulfilled all the qualifications required for the appointment and that the ECI has categorically stated that the ad hoc appointees were regularised after relaxation of the Rules in view of the special circumstances. She in support of this contention has relied upon the judgment of the Supreme Court in the case of Pratap Kishore Panda and Others (supra) and stated that it is a valid / regular appointment through an alternative method.

24. She stated that the Tribunal has failed to consider Rule 5 of the Recruitment Rules, which provides relaxation of the Rules by the Central Government and the Central Government vide Joint Secretary‟s letter had granted ECI the power to relax rules for UDC which is also applicable to LDCs. Hence, the regularisation of the petitioners is legally valid and within the rules as prescribed in the Recruitment Rules, 1988.

25. She has stated that all the ad hoc appointees were appointed through Employment Exchange with Group-D qualifications to hold the post of LDCs and the ECI constituted a panel including one Officer from Rajya Sabha and one from Lok Sabha for conducting the Open Typing Test and Interview.

26. Ms. Arora stated that the Tribunal has erroneously interpreted the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers Assn (supra) inasmuch as, in the said case the Supreme Court held that, when an ad hoc appointment is de hors the Rules but uninterrupted followed by regular appointment, the seniority would be reckoned from the date of regular appointment. This principle has been followed in R. K. Barwal v. State of H.P., (2017) 16 SCC 803 and Sudhir Kumar Atrey v. Union of India, (2022) 1 SCC

352. She has argued that, in the case in hand, the ECI had counted the seniority from the date of their regular appointment and has not given any benefit of seniority from the initial date of appointment.

27. Furthermore, she stated that the direct recruits can only claim seniority from the date of their regular appointment and not from a date when they were not born in service. She stated that the contention of the direct recruits that they are to be given seniority ahead of the ad hoc appointees, is without substance because none of the direct recruits were of eligible age when the petitioners joined the service or when the petitioners service were regularised.

28. In support of her above contention she has relied upon the judgments of the Supreme Court in K. Meghachandra Singh v. Ningam Siro & Ors., (2020) 5 SCC 689; Pawan Pratap Singh & Ors. v. Reevan Singh & Ors., (2011) 3 SCC 267; A. Janardhana v. Union of India 1983 3 SCC 602; P. Sudhakar Rao and others vs. U. Govinda Rao 20 and others, (2013) 8 SCC 693; Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan, (2019) 16 SCC 28; Shitla Prasad Shukla vs. State of UP, (1986)(Supp.) SCC 185 and State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821; Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561.

29. She stated that the direct recruits have no locus standi to challenge the regularisation made by the ECI, as their appointment into the cadre as LDC was made much after the regularisation of the ad hoc employees. She also stated that, some of the ad hoc appointees have qualified the test conducted by the SSC and have become UDCs/Section Officers even Under Secretaries and if the seniority is changed at this point of time the entire staff will be affected as the Government/Rules are changed now, i.e., fixing of reservation quota, seniority quota, compassionate quota, group „D‟ quota, and even date for fixing the seniority has also been changed. She seeks the prayers as made.

30. Mr. Siddhant Kumar, the learned Counsel for the respondent No.1/ECI stated that the ad hoc appointees were appointed due to the premature dissolution of Lok Sabha resulting in conduct of countrywide elections. In such circumstances, the respondent No.1 was obligated to fill these vacancies by invoking Rule 5 of the Recruitment Rules and appoint the ad hoc appointees as LDCs. Later on, respondent No.1 in public interest had regularised the services of the ad hoc appointees since the ad hoc appointees had already been in service and have gained requisite experience.

31. He stated that the initial appointment and regularisation of the ad hoc appointees has already been affirmed by Tribunal in the Impugned Judgment and, as such the seniority of the persons has to be determined from the date of the regular appointment. In support of his submission, he had relied upon Santosh Kumar v. G.R. Chawla, (2003) 10 SCC 513, P.P.C. Rawani & Ors. v. Union of India &Ors., (2008) 15 SCC 332 and Rashi Mani Mishra v. State of Uttar Pradesh,

32. Mr. B.S. Rajesh, learned counsel for the direct recruits stated that the appointments through Employment Exchange were made in contingency and is valid till the regular appointments through SSC are made. He also stated that the ECI has not produced any order of the government exercising the relaxation under Rule 5 of the Recruitment Rules. Hence, the regularisation / appointment is illegal and their seniority cannot be reckoned from their initial or from the date of regularisation / regular appointment.

33. He also stated that the ad hoc appointment of the Group-D employees was in excess of 5% quota as fixed in the Recruitment Rules; as such they cannot be treated as regular appointees. He also stated that the regularisation of ad hoc appointees, who were not appointed initially in accordance with rules, violates the principle of equality enshrined in Article 14 of Constitution of India and the seniority cannot be bestowed on such illegal appointments.

34. He stated that, it is a settled law that, appointments made contrary to rules are merely fortuitous and do not confer seniority that too over and above regular/substantive appointees to the service. In support of his submissions, he has relied upon the judgments in Secretary, State of Karnataka v. Uma Devi, 2006 (4) SCALE 197; Secretary to Government School Education Department, Chennai v.

Nadu through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and another v. A. Singamuthu, 2017 (4) SCC 113; State of Rajasthan v. DayaLal, (2011) 2 SCC 429: (2011) 1 SCC (L&S)340]; Padma Sundara Rao and Others v. State of Tamil Nadu and others, (2002) 3 SCC 533; B.N. Nagarajan & Ors v. State of Kamataka & Ors., (1979) 4 SCC 507; State of Orissa v. Sukanti Mohapatro, 1993(2)SCC 486; MA. Haque (Dr) v. UOI, 1993 (2) SCC 213; Sanjay K Sinha-II and others v. State of Bihar & Ors., 2005 SCC L&S 169 and State of Bihar v. Devendra Sharma, Civil Appeal No.7879/2019.

35. Having heard the learned counsel for the parties and perused the records, the issue which arises for consideration in both the writ petitions is, whether the Tribunal was justified in setting aside the impugned seniority list dated June 11, 2004 with the direction to the ECI to recast the seniority list in terms of the observations made by it or whether the direct recruits are entitled to the reliefs as prayed for in their petition for setting aside the regularisation of the ad hoc appointees as LDCs.

36. There is no dispute that the regularisation / appointment with probation of two years of the ad hoc appointees was undertaken much before the direct recruits were appointed between November, 1998 to May 1999. In that sense, the direct recruits were not even working as LDCs in the ECI when the ad hoc appointees were regularised. It is also the case that, since the date of their regular appointment between the years 1993-1996, the ad hoc appointees are working in the ECI and in fact have been promoted to the posts of UDCs/Section Officers and even Under Secretary.

37. The question would be, whether the direct recruits have locus standi to challenge the regularisation / regular appointment of ad hoc appointees, when they were not even on the rolls of the ECI. The answer to this question which would have a bearing on the issue of seniority, which was the subject matter of the challenge before the Tribunal has to be in the negative. This we say so because when the direct recruits were not even appointed in the ECI/Service, surely they could not have challenged the regularisation of ad hoc appointees, as no rights of their were affected at the relevant time. Moreover, the petition cannot be construed as a Public Interest Litigation challenging the regularisation of the ad hoc appointees, as the same was filed before Tribunal.

38. Even otherwise, it is a fact that the ad hoc appointments were made in 1991-94 and regularisation / regular appointment made between 1993-1996, whereas the direct recruits have been appointed in the ECI/Service in 1998-1999 and they had not initiated any litigation till the seniority list was issued wherein ad hoc appointees were shown senior to the direct recruits i.e., in the year 2004. So, in that sense, the challenge to the regularisation / regular appointment of ad hoc appointees was barred by limitation also.

39. In any case, there is no dispute to the proposition of law that seniority in the grade shall be from the date when the regular appointment has been made and there is no doubt that seniority to the ad hoc appointees is given in the grade of LDC from the date of regularisation / regular appointment between the years 1995-1998.

40. No doubt, heavy reliance has been placed by the counsel appearing for the direct recruits on the recruitment rules to contend; (1) that the regularisation of the ad hoc appointees was not in terms of the recruitment rules, as it contemplates that ad hoc appointment must be till the period of regular appointment is made through SSC and (2) the Rules do not stipulate the process of regularisation of ad hoc appointees and hence the ad hoc appointees could not have been regularised.

41. The submission looks appealing on a first blush but on a deeper consideration it must be stated that, after a lapse of 27 to 30 years, the regularisation of the ad hoc appointees cannot be set aside, on the asking of the direct recruits who were appointed much after the regular appointment, only because the ad hoc appointees have been made senior to them in the Seniority List dated June 11, 2004 in the grade of LDC.

42. We are afraid such a relief, in the facts of this case, more so in exercise of jurisdiction of this Court under Article 226 of the Constitution of India cannot be granted.

43. Having said that, in so far as the final conclusion of the Tribunal in setting aside the seniority list dated June 11, 2004 is concerned, we are of the view that the Tribunal could not have set aside the seniority list dated June 11, 2004, when it did not interfere with the regularisation of ad hoc appointees. The regularisation shall determine the seniority in a grade, which according to this Court would be the date when the ad hoc appointees were regularised in temporary capacity in the years 1993-1996 with two years of probation, which they cleared before the appointment of the direct recruits.

44. The Tribunal has clearly overlooked this pertinent aspect. Even the subsequent direction of the Tribunal for recasting of the seniority list in terms of the observations made by it is also unsustainable in view of our finding above.

45. The counsel for the direct recruits has relied upon the following judgments for the following propositions:a. R. Govindaswamy and others (supra), wherein Supreme Court held that the Court should not issue any direction for regularisation of an employee unless the employee claiming the regularisation had not been appointed in accordance with relevant rules. The said judgment is distinguishable in the facts of this case, more so in view of our finding above. b. The State of Tamil Nadu through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Another Vs. A. Singamuthu, 2017 (4) SCC 113, wherein the issue was of regulaisation of part time employee on completion of ten years of his service. The Supreme Court held that the G.O.Ms.No. 22 P &AR Dept. dated February 28, 2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees. The said proposition has no applicability to the facts of this case. c. Daya Lal (supra), wherein the Supreme Court held that Service for a period of one or two years or continuation for some more years by virtue of final orders under challenge, or interim orders, will not entitle them to any kind of relief either with reference to regularization nor for payment of salary at par with regular employees of the Department. It is not such a case here. Rather it is a case of seniority list issued in 2004. Hence, the Judgment is distinguishable. d. Padma Sundara Rao and Others (supra), the Supreme Court held that the Courts should not place reliance on the decisions without discussing as to how factual situation fits in with the fact situation of the decision on which the reliance has been placed. There is no dispute on the proposition of law. The Judgment is distinguishable in the facts. e. B.N. Nagarajan & Ors (supra), the Supreme Court held that, the relevant period the promotees held appointments as Assistant Engineers in a non-substantive capacity i.e. either on an officiating or a temporary basis, they would all rank junior to the direct recruits who, from the very start, held appointments made “substantively in clear vacancies”. The said judgment is distinguishable in the facts of the case and in view of our finding above. f. State of Orissa (supra), wherein the Supreme Court held that, though the power of relaxation stated in the rule was in regard to "any of the provisions of the rules", this did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire· ad hoc service of a direct recruit could not be treated as regular service. The facts of the said case are at variance with the facts and circumstance of this case and hence no applicability. g. M.A. Haque (Dr) (supra), in the said judgment the petitioner/ ad hoc appointee was appointed as stop gap arrangement while there is pending appointment by UPSC, hence Supreme Court held that the seniority given to the petitioner/applicant will have to be below the seniority of the outsiders / directly recruited through the UPSC. The Judgment has no applicability. h. Sanjay K Sinha-II and others (supra), wherein, it was held that appointments made contrary to the rules are merely fortuitous and do not confer benefit of seniority on the appointees over and above the regular/substantive appointees to the service. The Judgment has no applicability to the facts of this case and also in view of our conclusion above. i. Jammu and Kashmir, Public Service Commission v. Dr. Narinder Mohan (1994) 2 SCC 630, wherein it was held that the power of relaxation exercised by the Government is ultra vires the Rules and the High Court is right in holding that Government cannot relax the rules of recruitment made by the PSC. Government have no power to make regular appointment under the Rules without selection by the Public Service Commission under Section 133(1) read with Rule 5 and Schedule-III of the Rules. The Judgment is clearly distinguishable on facts and hence no applicability. j. Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra, 1994 Suppl (3) SCC 380, wherein the Supreme Court held that the eligibility and continuous working for howsoever long period should not be permitted to overreach the law. Requirement of rules of selection through Commission cannot be substituted by humane considerations. k. Dr. Surinder Singh Jamwal v. State of J & K (1996) 9 SCC 619, the Supreme Court held that the ad hoc appointee shall to continue till the appointment of direct recruit and the department shall allow the ad hoc appointee age relaxation enabling them to apply for and seek recruitment through PSC, as the same shall be in accordance with the Rules. l. Devendra Sharma (supra), wherein the Supreme Court held that, appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. Such appointments were backdoor entries, an act of nepotism and favoritism and thus from any judicial standards‟ it cannot be said to be irregular appointments but are illegal appointments in a wholly arbitrary process. m. Suraj Parkash Gupta (supra), wherein the Supreme Court has held that the recent decisions of this Court requires strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment. The words “may consult PSC” were held to be read as “shall consult PSC” and the Rule was treated as mandatory. Suffice to state, the above Judgments have no applicability to the facts.

46. In view of our above discussion, we are of the view that the order of the Tribunal is liable to be set aside. Accordingly, the writ petition W.P. (C) 1736/2022 is allowed.

47. In so far as the prayers of the Direct Recruits in W.P. (C) 4762/2007 are concerned, the same are devoid of merit and are liable to be rejected. It is ordered accordingly. The petition being W.P.(C) 4762/2007 is dismissed. No costs. CM APPL. 3194/2007 in W.P.(C) 1736/2007 In view of our conclusion above, this application has become infructuous and dismissed as such.

V. KAMESWAR RAO, J

ANOOP KUMAR MENDIRATTA, J. JULY 24, 2023/ds/jg