Madhya Pradesh High CourtUnion Of India vs Mrs. Lakshmi Haridas on 10 December, 2011Author:T. K. KaushalBench:T. K. KaushalHIGH COURT OF MADHYA PRADESH, JABALPUR


                       Writ Petition No.17651/2011



Union of India and others............................................................Petitioners
Versus
Mrs. Lakshmi Haridas................................................................Respondent


For the petitioners : Shri S. K. Mishra, Advocate.

For the respondent : Shri Anoop Nair, Advocate.


     ...............................................................................................................
          Present : HONOURABLE SHRI JUSTICE AJIT SINGH
             HONOURABLE SHRI JUSTICE T. K. KAUSHAL
      ............................................................................................................


                                 ORDER(10.12.2011)


The following order of the Court was delivered by :Ajit Singh, J. This petition, underArticle 227of the Constitution, is
directed against the order dated 24.3.2011, Annexure P1, passed in
Original Application No.156/2010 by the Central Administrative Tribunal,
Jabalpur Bench (in short, "the Tribunal") whereby it has directed the
petitioners to grant the benefit of first financial upgradation under
Assured Career Progression Scheme (ACPS) to the respondent with
effect from 22.7.1999 and also to pay the arrears due to her as per rules
on account of grant of first financial upgradation.2.       On 12.11.1986 the respondent was initially appointed in the
Tribunal as typist on contingency basis. Thereafter, a test was conducted
on 6.7.1987 in which the respondent appeared alongwith candidates
sponsored by the employment exchange. In the test, the respondent
was declared selected. Thereupon she was appointed on the post of
Stenographer Grade `D' on ad-hoc temporary basis in the pay scale of
Rs.1200-2040 with effect from 22.7.1987 for a period not exceeding one2year. By another order dated 2/5.8.1988 the term of appointment of
respondent as Stenographer Grade `D' on ad-hoc temporary basis was
extended till further orders or until regularized under the recruitment
rules.3.       But a Departmental Promotion Committee in its meeting held on
30.7.1993 did not find the respondent qualified for the post of
Stenographer Grade `D'. The competent authority therefore, on the
recommendation made by the Departmental Promotion Committee, by
order dated 12.8.1993 regularized the respondent on the post of Lower
Division Clerk with effect from 10.8.1993. One of the conditions
stipulated in the order was as under:"(iii) She will be entitled to notional seniority on the post
         of Lower Division Clerk w.e.f. 22.7.87 (the date of her
         initial appointment). However, she will rank junior most
         amongst other Lower Division Clerks on the date of her
         regularization, although she will be entitled to weightage
         for her past ad-hoc services as Stenographer Grade `D'
         as and when she falls within the zone of consideration
         for next promotion."(emphasis supplied)4.       Thereafter, by order dated 8.9.1993 the respondent was
confirmed on the post of Lower Division Clerk with immediate effect. The
competent authority by order dated 13.8.2007 granted first financial
upgradation under ACPS to the respondent in the pay scale of Rs.4000-
100-6000 with effect from 9.8.2005 on her completion of 12 years
regular service. Since the period of 12 years of respondent's service was
counted from 8.9.1993, she felt aggrieved and made a detailed
representation dated 20.11.2008 to the authority requesting for grant of
first financial upgradation with effect from 22.7.1999 on completion of
12 years of service counting from 22.7.1987. The competent authority
did not agree with the respondent and rejected her representation on
the ground that in terms of para 3.2 of the Government of India OM
dated 9.8.1999 (ACPS) read with clarification to Point of Doubt No.11
indicated in DOP&T OM No.35034/1/97-Estt. (D) (Vol.IV) dated
10.2.2000 only regular service which counts for the purpose of regular3promotion in terms of relevant recruitment/service rules shall count for
the purpose of upgradation under ACPS.5.    The    respondent,    aggrieved    with   the   rejection   of   her
representation, filed Original Application No.156/2010 before the
Tribunal. The Tribunal, relying upon the decision dated 10.9.2008 of the
Madres High Court inUnion of India v. Skariah Thomas (Writ Petition
No.6876/2008) held that the ad hoc services rendered by the respondent
from 22.7.1987 on the post of Stenographer Grade `D' must also be
counted for the benefit of first financial upgradation under ACPS, more
particularly when the order dated 12.8.1993 itself speaks that she will be
entitled to notional seniority on the post of Lower Division Clerk with
effect from 22.7.1987. On this finding, the Tribunal allowed the Original
Application of respondent and directed the petitioners to grant her the
benefit of first financial upgradation under ACPS with effect from
22.7.1999 i.e. on completion of 12 years of service counting it from
22.7.1987 and not from 8.9.1993.6.    It is argued on behalf of the petitioners that the Tribunal
committed an illegality in not correctly understanding the circular dated
9.8.1999 of the Government of India. The learned counsel for
respondent, on the other hand, defended the order under challenge
passed by the Tribunal.7.    The relevant para 3.2 of the ACPS reads as under:"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."8.    The clarification dated 10.2.2000 of the Government of India in
respect to the above quoted para 3.2 is as under:"In case of an employee appointed on ad-hoc basis and
       who is subsequently regularized, the ad-hoc service is
       counted towards increment. Whether the ad-hoc service
       may be counted for the ACPS also?4No. In terms of para 3.2 of the Office Memorandum
       dated August 9, 1999 (ACPS), only regular service which
       counts for the purpose of regular promotion in terms of
       relevant Recruitment/Service Rules shall count for the
       purpose of upgradation under ACPS."9.    The respondent was appointed on 22.7.1987 on the post of
Stenographer Grade `D', though on ad-hoc temporary basis, but after
her due selection in the test conducted on 6.7.1987 in which other
candidates   sponsored    by   the   employment     exchange    had   also
participated. She continued on the said post up to 8.9.1993, pursuant to
the extension order passed by the competent authority. On 8.9.1993 she
was confirmed on the post of Lower Division Clerk on the basis of
recommendation made by the Departmental Promotion Committee. The
order dated 10.8.2003 regularizing the respondent on the post of Lower
Division Clerk clearly stipulates that she will be entitled to notional
seniority on the post of Lower Division Clerk with effect from 22.7.1987.
When the seniority of respondent has been protected from 22.7.1981 we
find no justification in petitioners' action denying her the benefit of the
period of service rendered by her from that date for the purpose of grant
of first financial upgradation under ACPS.In an identical fact situation
the Madras High Court in Union of India v. Skariah Thomas (Supra),
after examining the above quoted para 3.2 and its clarification and
relying upon the decision of the Supreme CourtUnion of India v. M.
Mathiavanan(2006) 6 SCC 57, directed the Union of India to count even
the period of ad-hoc service rendered by an employee for the purpose of
grant of benefit of first financial upgradation under ACPS. It is stated at
the Bar that the Supreme Court has dismissed the SLP vide order dated
8.7.2009 against the decision of the Madras High Court.10.   For these reasons, we find no merit in the petition. It is
accordingly dismissed.(AJIT SINGH)                                          (T. K. KAUSHAL)
   JUDGE                                                   JUDGE
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