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CASE NO.:

Appeal (civil) 2935 of 2000

PETITIONER:

ANIS PARVEZ & ORS.

Vs.

RESPONDENT:

T&HEINDDIURSETCRTIOARL GREENSEERAARLC,H C&OUONRCSI.L OF SCIENTIFIC

DATE OF JUDGMENT: 07/05/2002

BENCH:

S. Rajendra Babu, Ruma Pal & Bisheshwar Prasad Singh

JUDGMENT:

[With I.A.Nos.2&3 in SLP(C) No.18382/1999]

J U D G M E N T

RAJENDRA BABU, J. :

C.A No. 2935 OF 2000

The appellants in this appeal are employees of respondent No.2

who were regularised on Technician Grade II as highly skilled or skilled

workers on 9.12.1991 under a scheme formulated by respondent No.1

pursuant to a decision of this Court in WP (C) No.6331/88 Mrs.

Kamlesh Kapoor vs. Union of India. In that writ petition, a direction was

issued to respondent No.1 to prepare a scheme for the absorption of all

persons who were working on casual basis for more than one year and to

absorb such of those persons who satisfy the scheme as regular

employees in the respective posts held by them. Certain other incidental

reliefs were also given by that order. Subsequently, a scheme was

prepared pursuant to the order of this Court known as "Casual Workers

Absorption Scheme 1990" and in terms of the said scheme, the

appellants were considered for absorption for regularisation against

Group II/C posts on which they were already working and after a trade

test followed by an interview held on 18th, 19th and 20th November 1991

and on the basis of the recommendations of the Selection Committee,

were regularised as temporary Technician Grade II in respondent No.2

institute on a probation for a period of one year. Thereafter on

successful completion of probation they have been duly confirmed on

their posts.

Aggrieved by this regularisation, respondent Nos. 3 to 12 filed O.A.

No.1430/92 before the Central Administrative Tribunal, Principal Bench,

New Delhi [hereinafter referred to as 'the Tribunal'] and sought for a

direction to respondent Nos. 1 and 2 to fill up the regular Group C post

of Technician Grade II only from their rank at least from the date their

juniors were appointed or considered in those posts. In this application,

appellants were not made parties. During the pendency of this

application, another application [O.A.No.2095/93] was filed seeking

quashing of the regularisation of the appellants as well as some of the

respondents as Technician Grade II and to promote them in their place.

The Tribunal allowed both the applications [O.A.No.1430/92 and

O.A.No.2095/93] and directed respondent Nos.1 and 2 to consider the

cases of respondent Nos.3 to 12 for promotion to Technician Grade

II/Grade C post and promote them to that from the date of promotion of

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their juniors and fix their inter se seniority by quashing the

appointments of the appellants.

The High Court, on writ petition being filed against the same in

W.P. 2308/98 dismissed the same and upheld the order of the Tribunal.

The writ petition filed by the appellants as well as that of the CSIR were

dismissed. Against the order passed by the High Court in writ petition

filed by CSIR, special leave petition was preferred before this Court,

which was dismissed by this Court in limine and to those proceedings

the appellants were not parties. The appellants subsequently filed the

present special leave petition and leave was granted by this Court.

It is contended by the appellants which is supported by respondent

Nos.1 and 2 that at the time of appointment of respondent Nos.3 to 12,

only Group D posts were available and, therefore, they were absorbed

accordingly and they could not be considered again for absorption in

Group II/Grade C since they had already derived the benefit of

absorption under the scheme and that absorption also depended upon

the availability of the post at a given point of time. In other words, the

seniors stood already absorbed in the lower category. There were no

vacancies of a higher scale at the relevant time of subsequent

consideration and hence their case for absorption in promotional grade

could not be reconsidered. It is contended that the appointment of

appellants in posts vacant at the relevant point of time, though higher

than those of respondent Nos.3 to 12, is valid in law. It is a matter of

chance that at the time of appointment of the appellants, posts in a

higher grade were vacant than at the time of appointment of respondent

Nos.3 to 12. As respondent Nos.3 to 12 were already absorbed when the

Technician Grade II posts fell vacant, the appellants were given the

chance to be appointed in those posts. The appointment was in the

natural course of events and hence cannot be challenged on the ground

of arbitrariness or discrimination.

The stand of the contesting respondents is that the absorption

made by the respondents was contrary to rules of seniority. Options

have been called for and given in time by the contesting respondents for

the purpose of considering their cases for promotion or appointment in

those posts. Respondent Nos.1 and 2 were bound to prescribe an

objective and rational method of selection of candidates depending upon

the job requirement and fulfillment of necessary qualifications prescribed

for the post. The fact that consideration has not taken place though the

contesting respondents were within the eligibility zone of promotion and

possess necessary and desirable qualification and are senior enough for

consideration of promotion has not been denied. The appointment of

junior candidates by pick and choose method without adhering to the

principle of seniority is unsustainable in law.

Both the appellants and the contesting respondents were serving

in the establishment of respondent Nos. 1 and 2 on daily wage basis or

as casual workers. Respondents 3 to 12 were absorbed in Grade 'D'

posts according to their seniority pursuant to a scheme framed by

respondent No.1 for regularization of the services of daily wage workers

giving preference to those who had worked for 240 days in each of the

two preceding years and were fully qualified. The scheme was

introduced by respondent No.1 on 19th April, 1984 and the selection

committee selected the candidates for absorption on 25th October, 1985.

Respondents 3 to 12 were accordingly absorbed in the year 1985 against

group 'D' posts. So far as the appellants are concerned they were

absorbed in different posts under a different scheme framed by

respondent No.1 pursuant to a decision of this Court in WP(C) No.6331

of 1988 and were regularized against Group II/C posts on 9th December,

1991. It is clear that so far as respondents 3 to 12 are concerned, they

had already been absorbed six years earlier against Group 'D' posts

according to their seniority and, therefore, the question of considering

them again for absorption under the later scheme did not arise. In fact

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when the appellants were sought to be absorbed against available posts

in the establishment in the year 1991, respondents 3 to 12 already stood

absorbed in service and hence could not claim benefit under the scheme

framed pursuant to the orders of this Court.

It is only by way of concession that a scheme of absorption was

framed pursuant to a direction issued by this Court and when there were

vacancies of higher scale at the relevant time and they were not serving

in those posts consideration of their cases for absorption in that Grade

could not be considered. Further when the absorption of the appellants

came up for consideration the posts were available in Group II/Grade C

and, therefore, the cases of respondent Nos.3 to 12 could not again be

considered. In those circumstances, absorption of the appellants in

Group II/Grade C cannot be faulted with. Though the Tribunal has

thought fit to give a direction to consider the cases of respondent Nos.3

to 12 for promotion to the higher scale, the cases of the appellants were

considered not by way of promotion but by way of absorption in those

posts. Hence we do not think the matters that have become final so far

as respondent Nos.3 to 12 were concerned could be reopened and if that

process goes on every time a person has to be absorbed in the service

those who have been absorbed earlier will have to be considered again

when the higher post becomes available and in such an event, the

process cannot be completed.

In that view of the matter, we allow this appeal, set aside the

orders made by the High Court and that of the Tribunal and dismiss the

applications filed by respondent Nos.3 to 12 before the Tribunal. No

costs.

I.A.Nos.2-3 in SLP(C) No.18382/1999

In the light of the order we have made in C.A.No.2935/2000, it is

unnecessary to deal with the relief sought for in I.A.Nos. 2-3 in SLP(C)

No.18382/1999. The I.As. stand disposed of accordingly.

...J.

[ S. RAJENDRA BABU ]

...J.

[ RUMA PAL ]

...J.

[BISHESHWAR PRASAD SINGH]

MAY 7, 2002.