Paramjit Singh Sidhu Son Of Late ... vs Employees Provident Fund ...

on 8 October, 2010

Central Administrative Tribunal - Chandigarh

Paramjit Singh Sidhu Son Of Late ... vs Employees Provident Fund ... on 8 October, 2010

CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH

O.A. 807/CH/2009 Decided on: 8th October 2010
CORAM: Hon'ble Mrs. Shyama Dogra, Member (J). Hon'ble Mr. K

Paramjit Singh Sidhu son of Late Shri Manna Singh, aged 54 years, Section Supervisor, Office of
Applicant
Versus
1. Employees Provident Fund Organisation, Ministry of Labour, Government of India through Centr
2. Regional Provident Fund Commissioner, SCO No.4-7, Sector-17-D, Chandigarh.
3. Shri. S.K. Punj, Accounts Officer,
4. Shri Rakesh Paul, Accounts Officer.
5. Ms. Sneh Sudha Pathak, Accounts Officer.
6. Shri Kashmir Singh Kaler, Accounts Officer.
7. Shri Satish Ohri, Accounts Officer.
8. Shri Vijay Bhandari, Accounts Officer.
9. Shri Brij Bhushan, Accounts Officer.
10. Shri Mehar Singh, Accounts Officer.
11. Sh. Krishan Lata, Accounts Officer.
12. Ms. Indu Sharma, Accounts Officer.
13. Shri Gurnam Singh, Section Supervisor.
14. Shri Jai Chand, Section Supervisor.
15. Shri Rakesh Kumar Arora, Section Supervisor.
16. Shri Sham sunder, Section Supervisor.
17. Ms. Mohanjit Kaur, Section Supervisor.
18. Shri Jai Parkash, Section Supervisor.
19. Shri Madhu Sudan Sharma, Section Supervisor.
20. Shri Bakshish Singh, Section Supervisor.
21. Shri Manohar Lal, Section Supervisor.
22. Shri Vinod Kumar, Section Supervisor.
23. Shri Tilak Raj, Section Supervisor.
................Respondents

Present: Sh. A.L. Vohra, counsel for the applicant.

Sh. Rohit Sharma, counsel for respondents No.1&2.

O R D E R(Oral) By Hon'ble Mr. Khushiram, Member (A):-

On 26.8.1994 the applicant was given ad-hoc promotion as head clerk while working as UDC with
the specific condition that ad-hoc service will not count for seniority in the cadre of Head Clerk. He
sought reversion for personal reasons and was debarred from promotion for one year between
23.2.96 to 12.2.02. More UDCs, junior to applicant were given promotion as Head Clerks with the
same terms and conditions. The applicant, however, was neither given ad-hoc promotion nor was

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 Paramjit Singh Sidhu Son Of Late ... vs Employees Provident Fund ... on 8 October, 2010

asked to give his willingness for ad-hoc promotion. On 14.5.2002, applicant being senior in the
cadre of UDC was given promotion as Section Supervisor on regular basis. On 22.6.2009 regular
promotion to private respondents was given by the respondents assigning them seniority from the
date of their ad-hoc promotion though they were junior to the applicant. On 23.6.2009 draft
seniority list of Section Supervisors as on 31.3.2009 was issued indicating the juniors of the
applicant as senior on the basis of seniority assigned from the date of ad-hoc promotion against
which he made a representation on 26.6.2009 which was rejected by the respondents on 14.7.2009.
In the information sought by the applicant under RTI Act.2005; respondents disclosed that DPC for
regularizing his juniors was held on 19.6.2009 and 10.7.2009 for filling the vacancies in the cadre on
year to year basis. However, no information about rules/instructions under which ad-hoc service
was counted for fixing seniority in the cadre was supplied. Aggrieved by this decision of the
respondents, the applicant has filed this O.A. seeking mainly following reliefs:

i) Order dated 22.6.2009 (Annexure A-1) and dated 14.7.2009 (Annexure A-2) issued by the
respondents be quashed and set aside to the extent it counts the period of officiating (ad-hoc
service) rendered by the private respondents No.3 to 23 for assigning seniority in the cadre of
Section Supervisors, and letter dated 14.7.2009 (Annexure A-3) be also quashed and set aside being
illegal, arbitrary and against the rules;

ii) Respondents be directed to recast the seniority in the cadre of Section supervisors by ignoring the
ad-hoc service rendered by the private respondents and similar other officials in terms of specific
condition introduced by the respondents in promotion order (Annexure A-5) and respondents be
directed to assign seniority to the applicant in seniority list above the private respondents by
assigning him the year of promotion as assigned to his immediate junior with all consequential
benefits.

Respondents have filed W.S. contesting the claim of the applicant stating that the applicant declined
to accept the promotion vide his application dated 27.11.1995 and dated 30.8.2001. It is stated that
2/3 of the sanctioned strength of the UDC (rechristened as Social Security Assistant) is to be filled
up on the basis of seniority cum fitness and 1/3 on the basis of promotion of the UDCs (who have
completed three years regular service) through qualifying a limited departmental promotional
examination. Therefore, promotion for the post of Section Supervisors between the two types is
required to be made in 2:1 ratio on the basis of seniority quota and limited departmental
promotional examination respectively. The applicant had expressed willingness for promotion as
Section Supervisor on 29.7.1994 (Annexure R-1) but sought reversion vide his application dated
31.10.1994 (Annexure R-2), citing therein un-avoidable domestic circumstances and accordingly
was reverted to the lower cadre vide order dated 07.11.1994 (Annexure A-6). With regard to the
contention of the applicant that he was never asked for his willingness for promotion respondents
have cited that the applicant declined to accept promotion vide his application dated 27.11.1995 and
31.8.2001 (Annexure R-3 & R-4). He was specifically asked to exercise his option for promotion vide
letter dated 28.9.2000 (Annexure R-5) but he did not respond to the same. It is contended that
Principal Bench in O.A. No.2472/1999 & M.A. No.1124/2005 in the matter of B.P. Jain & others has
held that:

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 Paramjit Singh Sidhu Son Of Late ... vs Employees Provident Fund ... on 8 October, 2010

a) The vacancies are to be reckoned on yearly basis.

b) The vacancies are to be distributed in the modes of recruitment as per ratio prescribed in the
recruitment rules.

c) That the official promoted/recruited against the modes of recruitment year-wise may be adjusted
against vacancies allotted to each mode of recruitment.

Respondents have further contended that in pursuance of directions of the Principal Bench in the
above cited O.A. review DPC was held on 19.6.2007 and 10.7.2009 and adjusted the officials
promoted against each mode of recruitment to the extent of vacancies available for that particular
mode of recruitment on year to year basis and relevant information was provided to the applicant
under RTI Act. The applicant was promoted again to the post of Section Supervisor on 14.5.2004
(Annexure A-7) and assigned seniority in the list of Section Supervisor (Annexure A-2). The
respondents have contended that after his reversion, the applicant was holding the post of Section
Supervisor since 12.6.2002; therefore, he has no right to claim promotion of the vacancies accrued
in the cadre of Section Supervisor prior to his assumption of charge on the said post. Accordingly, he
has been rightly assigned rank in the seniority list with reference to his actual date of promotion in
the cadre of Section Supervisor and he has no right to claim seniority and promotion on the
vacancies which accrued prior to assumption of charge by the applicant. Private respondents were
promoted earlier in the cadre of Section Supervisor than the applicant and they were assigned
seniority over him. The respondents have contended that the applicant has no case of claiming
seniority over them since he had already declined to accept promotion vide his application dated
27.11.95 and 30.8.2001 (Annexure R3/R-4) and did not respond to circular dated 28.9.2000
(Annexure R-5), therefore, O.A. has no merits. The promoted officials had to be accommodated
against each mode of recruitment and adjusted with reference to availability of vacancies for a
particular mode of recruitment in that particular year. The applicant was available for promotion
only in the year 2002, therefore, he stopped to lay claim over the vacancies that accrued prior to his
assumption of charge on the post of Section Supervisor and persons holding this post prior to his
assumption of charge were required to be considered against the available vacancies. The final
seniority list dated 14.2.2009 of Section Supervisors has rightly been issued in accordance with the
provisions of rules and is un-assailable. The claim of the applicant for notional promotion with
consequential benefits is bereft of merits as he did not avail the opportunity of promotion offered to
him at relevant point of time. The respondents have considered the period of officiation rendered by
an official on promotion and assigning seniority from the date of availability of the vacancies in that
particular mode of recruitment as stated above and the applicant cannot lay any claim over the
vacancies accrued in the cadre prior to his assumption of charge, especially in the circumstances
when he on every occasion, declined promotion offered to him.

Learned counsel for the applicant has invited attention on the order of promotion dated 26.8.1994
which has condition number 3 reads as under:-

iii) The period rendered by them in officiating as Head Clerk will not count towards seniority in the
grade of Head Clerks. Inspite of this condition, private respondents have been assigned seniority

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 Paramjit Singh Sidhu Son Of Late ... vs Employees Provident Fund ... on 8 October, 2010

on the basis of their ad-hoc promotions and it is precisely this condition which was main reason for
applicant to seek reversion from the ad-hoc promotion. He has also cited 2009(1) RSJ 452 titled
State of Punjab and anr. Vs. Ashwani Kumar and Ors. wherein the Apex Court has held that:

Ad-hoc services rendered not to be counted for the purpose of seniority . . . only regular service is
to be counted towards seniority. Judgment of High Court holding that ad-hoc service is to be
included in calculating the period of service for giving higher scale of pay held not sustainable. The
applicant has also filed rejoinder admitting that he sought reversion for the promotion on 29.7.1994
and further declined ad-hoc promotion on 27.11.1995, 28.9.2000 and 30.8.2001. He has also stated
that the ad-hoc promotions were granted with specifically providing that the promotion was a
stop-gap-arrangement till alternative arrangement was made to fill up post on regular basis and the
period rendered as Head Clerk shall not count towards seniority and also they cannot claim
promotion on regular basis on account of this ad-hoc promotion, therefore, the applicant did not opt
for the same. The applicant has also stated that after reversion from the ad-hoc promotion
w.e.f.07.11.94 respondents never promoted him again on regular basis nor ever asked his willingness
for such promotion. It is also stated that promotion to the applicant on regular basis was granted in
DPC held on 28.1.21002 till then none of his juniors were considered for promotion on regular basis.
The applicant has denied that the option was ever called by some circular to be exercised for
promotion nor was it ever circulated that ad-hoc service was countable towards seniority in the
promotional grade of Head Clerk/Section Supervisor. It is stated that there is no rule or regulation
which allows ad-hoc service to be counted for determining seniority particularly when promotion
itself contains a condition that the period of ad-hoc service shall not be counted towards seniority.
The applicant never exercised un-willingness for regular promotion. He has also cited 2000(8) SCC
(4) state of Haryana Vs. Haryana Viterinary & AHTS Association and others, wherein it was held
that for calculation of 8/18 years of service required for giving higher scale of pay and for
determining of seniority only regular service rendered by the employee is to be counted and not
ad-hoc service. The law is also settled by the Supreme Court in the case of State of Punjab Vs.
Ashwani Kumar and others, 2009(1) RSJ 452 (Supra). The applicant contends that ad-hoc service
cannot be counted for seniority and without holding DPC and determining their seniority/eligibility.

Learned counsel for the respondents reiterated that applicant had refused to exercise option for
ad-hoc promotion; therefore, he is not entitled to question assigning of seniority to those who have
worked as Section Supervisor on ad-hoc basis.

We have heard the arguments made on the behalf of rival contentions and have perused the record
placed before us. Admittedly, ad-hoc promotions of the applicant and private respondents were
made with a specific condition that the service rendered as ad-hoc will not be counted for seniority,
therefore, in the absence of any rule and regulation to the contrary, service rendered as ad-hoc in
officiating capacity as Section Supervisor by the private respondents, cannot be counted for
assigning seniority without holding DPC. The respondents have failed to support their decision by
any established rule or any citation. Even if the applicant had refused offers of promotion on ad-hoc
basis specifically, till this condition was specific in the promotion orders, his refusal to promotion on
ad-hoc basis cannot be considered sufficient reason for denying him seniority at par with his
juniors. Thus, in the absence of any specific rule/regulation/citation for justifying denial of seniority

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 Paramjit Singh Sidhu Son Of Late ... vs Employees Provident Fund ... on 8 October, 2010

to the applicant at par with his juniors cannot be held sustainable in the eyes of law. Therefore,
Annexure A-1 and A-2 along with Annexure A-3 qua applicant are held to be not sustainable and are
quashed and the applicant is held entitled to be assigned seniority at par with his juniors keeping in
view the application of rota-quota rule after re-casting the seniority in the cadre of Section
Supervisor within a period of three months from the date of receipt of a copy of this order.
Accordingly, O.A. is allowed and stands disposed of with no orders as to the costs.

(KHUSHIRAM) (SHYAMA DOGRA)

MEMBER (A) MEMBER (J)
Place: Chandigarh.
Dated: 08.10.2010.

KR*

O.A.807/CH/2009

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