The Kerala High Court allowed an original petition challenging a CAT order that had counted temporary and ad-hoc service as eligible for the Assured Career Progression Scheme (ACPS), holding that only regular service counts for financial up-gradation.
Petition allowed; Tribunal order set aside; ad-hoc and temporary service not countable for ACPS.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941
OP (CAT).No.73 OF 2018
AGAINST THE ORDER IN OA 478/2014 DATED 11-11-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONER/S:
1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, (DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES) KRISHI BHAVAN, NEW DELHI- 110 001
2 THE DIRECTOR, NATIONAL INSTITUTE OF FISHERIES,POST HARVEST TECHNOLOGY & TRAINING (NIFPHATT)P.B NO. 1801, KOCHI-682 016.
3 THE ACCOUNTS OFFICER OFFICE OF THE DIRECTOR, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLOGY & TRAINING (NIFPHATT)P.B NO. 1801,KOCHI-682 016.
4 THE DIRECTOR GENERAL FISHERY SURVEY OF INDIA, BOTAWALA CHAMBERS SIR P.M ROAD, FORT, MUMBAI-400 001.
BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC
RESPONDENT/S:
C.SREEKUMAR
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S/O. N.V CHELLAPPAN UNNITHAN, PROCESSING-CUMQUALITY ASSURANCE SUPERVISOR,NATIONAL INSTITUTE OF FISHERIES,POST HARVEST TECHNOLOGY & TRAINING (NIFPHATT)KOCHI-682 016, RESIDING AT: NO.C-10, NIFPHATT QUARTERS, PULLEPPADY, KOCHI-682 018.
R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.KALA T.GOPI
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 16-12-
2019, THE COURT ON 21-01-2020 DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 21st day of January, 2020
K.VINOD CHANDRAN, J.
The original petition is filed against the grant of first financial up-gradation under the Assured Career Progression Scheme (ACPS) counting the adhoc service of the applicant.
We refer to the parties and the documents as are available in the original application.
O.P.(CAT) No. 73 of 2018
The Tribunal found that though adhoc service cannot be counted for the purpose of ACPS/MACPS (Modified Assured Career Progression Scheme), the temporary service which was regularised cannot be excluded from reckoning the total service.
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. Mary [2011 (1) KHC 861]
also in a vacancy arising on promotion, which promotion was subsequently given retrospective effect from 15.7.1997. At least from that date, the applicant's appointment should be treated as regular; is the specific submission made by the learned Counsel. The learned Counsel would rely on the judgment of the Madras High Court in W.P.(C) No.24104 of 2011; the Director v. P. Karuppiah [unreported] to contend
that similar orders passed by the Tribunal at Chennai was affirmed by the Madras High Court. The Department is also
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said to have accepted the said judgment and granted relief to the applicants therein.
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and temporary basis and the candidate will have no claim for regular absorption in preference to his seniors in the RTP list of that Division. The claim therein was with respect to the time bound promotion to the next higher grade on completion of 16 and 26 years; the first of which the employee claimed from the date of his appointment in the year 1983. The Honourable Supreme Court, after reading the rules regarding Time Bound Promotion, found that “ so far as placing of an officer in the 'next higher grade' is concerned, what is relevant and material is that such official belonging to basic grades in Group 'C' and 'D' must have completed "sixteen years of service in that Grade." The said paragraph, nowhere uses the connotation 'regular' service. ” It is on such finding alone that the Supreme Court allowed the claim in Mathivanan , especially, looking at the warrant issued by the President of India, which also absorbed the
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petitioner, in the establishment of the regular army. Here the
scheme specifically defines regular service.
another v. V. N. Bhat [(2003) 8 SCC 714] to find that the ACPS could be granted counting the adhoc period. Both the above referred cases considered the question of time bound promotion in the context of a transfer made from one department to another, one in public interest and protecting
past service for all purpose and the other a voluntary transfer. The provision for stagnating in the same grade, for the purpose of time bound promotion, it was held, did not confine the consideration to the period spent in the transferee department, even when the transfer was voluntary, though in the later case there would be loss of
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seniority. We find the said decisions to be in a totally different context not applicable to the instant case. We
cannot, with due respect, agree with the principles enunciated in the Division Bench decisions of the Madras High Court on the specific language employed in the ACPS.
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with the finding since, if an adhoc employee is not entitled to count his adhoc service for promotion; then there arises no question of stagnation, on which factum is anchored the very scheme of financial up-gradation.
basis of law as declared above. We first look at Annexure A6; the date from which the applicant claims regular service for the purpose of ACPS. Annexure A6 dated 17.10.1995 appointed the applicant on temporary capacity against a vacancy which arose due to the 'deputation of a Deputy Director as Director, consequent promotion of Dr.Varghese P.Oomen as Deputy Director and Dr. P.Premalatha as fisheries Officer. It is to the post of Scientific Assistant, vacated by Dr. Premalatha that the applicant was temporarily appointed. The terms of appointment very clearly indicates that there was no vacancy available and it was only on the basis of the
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deputation that the consequent promotions were made which would have to be reversed on the deputation being cancelled and himself rejoining duty, which has the effect of cancellation of the resultant promotions too, thereby throwing out the applicant from service. It has to be accepted that the persons who were deputed and promoted retained their lien in the post from which they were deputed or promoted on an adhoc basis. There can hence be no treatment of adhoc period as eligible service for the purpose of promotion and hence there could be no reckoning of that period for time-bound up-gradation.
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regular appointment with effect from 1.6.1998 and the first up-gradation was granted under MACPS (Modified ACPS), as on 1.9.2010, counting the service from 1.6.1998. The ACP Scheme was discontinued on implementation of Modified ACP Scheme from 01.09.2008. The alternative claim is for ACPS in the year 2007 counting service from 15.07.1997, the date of retrospective effect granted to Dr. Premalatha. The alternative contention is also based on a declaration of probation with respect to the incumbent who was promoted, whose vacancy, the applicant occupied. Annexure A9 order itself is on 5.12.1998 and we are not made aware of the facts which led to such retrospective declaration of probation being granted. It is also very evident that the applicant had not chosen to seek earlier date of regularisation, despite the incumbent whose vacancy the applicant filled had been granted declaration of probation from an earlier date. The
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said claim also has to be rejected.
In such circumstances, we do not think that the Tribunal was right in having permitted the temporary service to be reckoned for the purpose of ACPS. We, hence, set aside the order of the Tribunal and allow the original petition. No order as to costs.
Sd/-
K.VINOD CHANDRAN JUDGE
Sd/JUDGE
Scl/22. 01.2020 xxx
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00478 DATED 30-06-2014 FILED BY THE RESPONDENTS BEFORE THE CAT,ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO. 180/00478/2014 DATED 20-02-2016 FILED BY THE PETITIONERS. EXHIBIT P3 TRUE COPY OF MISCELLANEOUS APPLICATION IN MA NO. 679 OF 2014 FOR CONDONATION IN MA NO.679 OF 2014 FOR CONDONATION OF DELAY OF 807 DAYS IN FILING THE COMPANION OA EXHIBIT P4 TRUE COPY OF THE OBJECTION IN MISCELLANEOUS APPLICATION NO. 679 OF 2014 DATED 12-12-2014. EXHIBIT P5 TRUE COPY OF THE REJOINDER IN OA NO. 180/00478/2014 DATED 14-04-2015 FILED BY THE RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER IN OA NO. 180/00478/2014 DATED 11-11-2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
| ANNEXURE A1 | TRUE COPY OF MEMO BEARING NO.A1/7- 2/2006/849 DATED 18/04/2011 ISSUED BY THE 3RD RESPONDENT. |
|---|---|
| ANNEXURE A2 | TRUE COPY OF MEMORANDUM BEARING NO.A1/2- 7/93/1642 DATED 29/04/1994 ISSUED BY THE 3RD RESPONDENT. |
| ANNEXURE A3 | TRUE COPY OF MEMORANDUM BEARING NO.A1/2- 7/93/2075 DATED 25/05/1994 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A4 | TRUE COPIES OF VARIOUS ORDERS ISSUED BY THE 2ND RESPONDENT EXTENDING THE AD-HOC |
| APPOINTMENT OF THE APPLICANT FROM TIME TO |
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TIME.
| ANNEXURE A5 | TRUE COPY OF MEMORANDUM BEARING NO.A1-2- 7/93 DATED 05/06/1995 ISSUED BY THE 2ND RESPONDENT. |
|---|---|
| ANNEXURE A6 | TRUE COPY OF OFFICE ORDER BEARING NO.155/95 DATED 17/10/1995 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A7 | TRUE COPY OF OFFICE ORDER BEARING NO.60/96 DATED 08/04/1996 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A8 | TRUE COPY OF OFFICE ORDER BEARING NO.21/2001 DATED 12/02/2001 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A9 | TRUE COPY OF OFFICE ORDER BEARING NO.232/98 DATED 05/12/1998 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A10 | TRUE COPY OF ORDER BEARING NO.5-16/2002- FY.(T5)(II) DATED 19/05/2005 ISSUED ON BEHALF OF THE 1ST RESPONDENT. |
| ANNEXURE A11 | TRUE COPY OF REPRESENTATION DATED 27/04/2007 ADDRESSED TO THE 2ND RESPONDENT. |
| ANNEXURE A12 | TRUE COPY OF ORDER BEARING NO. 12/2008- FY.ADMN. DATED 01/12/2008, ISSUED ON BEHALF OF THE 1ST RESPONDENT. |
| ANNEXURE A13 | TRUE COPY OF THE PRESENTATION DATED 25/06/2009 ADDRESSED TO THE 2ND RESPONDENT. |
| ANNEXURE A14 | TRUE COPY OF OFFICE ORDER BEARING NO.40/2010 DATED 09/09/2010 ISSUED ON BEHALF OF THE 2ND RESPONDENT. |
| ANNEXURE A15 | TRUE COPY OF REPRESENTATION DATED 04/10/2010 ADDRESSED TO THE 2ND RESPONDENT. |
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| ANNEXURE | A16 TRUE COPY OF REPRESENTATION DATED 06/07/2011, ADDRESSED TO THE 2ND RESPONDENT. |
|---|---|
| ANNEXURE | A17 TRUE COPY OF REPRESENTATION DATED 05/11/2012 ADDRESSED TO THE 2ND RESPONDENT. |
| ANNEXURE | A18 TRUE COPY OF REPRESENTATION DATED 12/11/2013 ADDRESSED T0 THE 1ST RESPONDENT. |
| ANNEXURE | A19 TRUE COPY OF GOVERNMENT INDIA DEPARTMENT OF PERSONNEL AND TRAINING OM BEARING NO. 18011/1/86-EST(D) DATED 28/03/1988. |
| ANNEXURE | R1 TRUE COPY OF THE LETTER NO.5-5/2010- FY.ADMN. DATED 17/03/2011. |
| ANNEXURE | R2 TRUE COPY OF THE LETTER NO.A1/1- 2/2009/2391 DATED 05/08/2011. |
| ANNEXURE | A20 TRUE COPY OF THE ORDER OF THE HON'BLE CAT, CHENNAI BENCH IN OA NO.105/2010 DATED 28/04/2011. |
| ANNEXURE | A21 TRUE COPY OF THE OFFICE ORDER BEARING NO.14-3/2010 ADM. DATED 14/08/2014 ISSUED BY THE DIRECTOR OF THE CENTRAL INSTITUTE OF FISHERIES NAUTICAL AND ENGINEERING TRAINING, FINE ARTS AVENUE, KOCHI. |
2 issues framed by the court
Whether ad-hoc service of an employee can be counted for the purpose of claiming financial up-gradation under the Assured Career Progression Scheme (ACPS)?
Whether temporary service which was not regularised can be reckoned for time-bound up-gradation under the ACPS scheme?
Colour shows how this judgement treated each authority
Union of India and others v. P.J. Mary [2011 (1) KHC 861]Distinguished¶33
Union of India and others v. P.J. Mary [2011 (1) KHC 861]
the Director v. P. Karuppiah [unreported]Distinguished¶38
W.P.(C) No.24104 of 2011; the Director v. P. Karuppiah [unreported]
Union of India and others v. M.Mathivanan [AIR 2006 SC 2326]Followed¶43
Union of India and others v. M.Mathivanan [AIR 2006 SC 2326] · Who else cites this
Dwijen Chandra Sarkar and another v. Union of India and others [ (1999) 2 SCC 119]Distinguished¶51
Dwijen Chandra Sarkar and another v. Union of India and others [ (1999) 2 SCC 119] · Who else cites this
Union of India and another v. V. N. Bhat [(2003) 8 SCC 714]Distinguished¶51
Union of India and another v. V. N. Bhat [(2003) 8 SCC 714] · Who else cites this
2 provisions across 2 enactments
Union of India represented by the Secretary to the Government of India, Ministry of Agriculture, (Department of Animal Husbandry, Dairying and Fisheries)
The Director, National Institute of Fisheries,Post Harvest Technology & Training (NIFPHATT)、P.B NO. 1801, Kochi-682 016
The Accounts Officer Office of the Director, National Institute of Fisheries, Post Harvest Technology & Training (NIFPHATT)P.B NO. 1801,Kochi-682 016
The Director General Fishery Survey of India, Botawala Chambers Sir P.M Road, Fort, Mumbai-400 001
C.Sreekumar
K.VINOD CHANDRAN
V.G.ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
