Mr. M.S. Ganesh, Sr. Adv. with Mr. Rao Raj Bahadur Singh, Adv v. INDIAN COUNCIL OF SOCIAL SCIENCE RESEARCH ORS

Judgment

1. The appellant was appointed as a Research Assistant in the Indian Council of Social Science Research1 on an ad hoc basis for 6 months, on 13 July 1989. She continued, in the same capacity, till 22 February 1996, during which period her ad hoc appointment was periodically renewed every 6 months with a technical break of 1 day prior to each renewal. Signature Not Verified 1 "ICSSR" hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024

2. During the aforesaid period, the appellant remained absent from duty from 11 March 1996 to 31 August 1996, without sanctioned leave. The ICSSR issued her a Memorandum on 6 March 1997, seeking her explanation for the aforesaid absence. The appellant replied on 12 March 1997. The ICSSR, after considering her reply, permitted her to rejoin on ad hoc basis, vide order dated 19 September 1997, subject to a final decision in the matter.

3. Vide Order dated 19 January 1997, a High-Powered Committee, chaired by Hon’ble Mr Justice V.S. Malimath2, former Chief Justice of the High Courts of Karnataka and Kerala, was constituted by the ICSSR to address the issue of regularisation of ad hoc appointments and promotion of ad hoc employees. This included the appellant. The Malimath Committee submitted its report to the ICSSR in June 1998.

4. Pursuant to a decision taken by the ICSSR in its 83rd Meeting on 16 September 1998, the ICSSR regularised the service of the appellant with effect from 1 January 1996, vide the following Office Order dated 17 March 1999, in the scale of ₹ 1640-60-2600-75-2900 (revised scale ₹ 5500-175-9000): “INDIAN COUNCIL OF SOCIAL SCIENCE RESEARCH (P & A) F. No. 19-21/98-A Date: 17.03.1999 OFFICE ORDER Consequent upon the decision taken by the Council at its 83rd meeting held on September 16, 1998, the services of Mrs Alka Signature Not Verified 2 "the Malimath Committee" hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 Srivastava are regularised in temporary capacity as Research Assistant in the pre-revised a scale of ₹ 1640-60-2600-75-2900 (now revised to ₹ 5500-175-9000) with effect from 01.01.1996 Her pay shall be fixed at appropriate stage in the scale of pay as on date subject to the condition that no arrears shall be paid to the for the period between 11.03.1996 to 25.09.1997. Sd/- (A.K. Khanna) Administrative Officer”

5. The above Office Order dated 17 March 1999 was, however, revoked by the ICSSR by its Order dated 31 May 2000, which read thus: “F. No. 19-21/98-A Dated: 31.5.2000 OFFICE ORDER In revocation of the Councils order of even number dated 17.3.1999 services of Ms Alka Srivastava stand regularised with effect from 1.1.1996. Mrs Alka Srivastava will be treated as junior to the regular employees of the ICSSR as on 1.1.1996 in his her cadre. The benefit of past services of the ad hoc employee will not count for any purpose pending the decision to be taken by a Committee formed for the purpose as per order of the Chairman, ICSSR. (Dr Ranjit Sinha) Director (P&M)”

6. The Office Order dated 17 March 1999 was partially modified by Order dated 29 October 2002 issued by the ICSSR, which read: “F. No. A(47)88-A Dated: 29 October 2002 OFFICE ORDER Impartial modification of Councils Order No. 19-21/98-A dated 17.3.99 the pay of Smt. Alka Srivastava, Research Assistant is hereby fixed on notional basis with effect from 13.7.1989 i.e. the date of her in 3 into the service as per rules. This will be subject to the following conditions. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024

1. She shall be required to refund the amount on account of notional fixation of pay to the Council in case the judgement of the High Court, where the other ad hoc employees have filed a Writ Petition for evocation of the Council order No. 19-21/98-A dt. 31.5.2000 is decided against the ad hoc employees. In this connection the undertaking given by her on 26 September 2002 is noted.

2. between 11.3.19 96 to 25.9.19 97. No arrears shall be paid to the for the period

3. The notional fixation of pay shall not confer, any rights to Mrs Alka Srivastava to claim any seniority and regularisation from the date of the initial appointment.

4. Her patiently fixed notion any which effect the date of the initial appointment but financial benefit, if any, shall be given to her with effect from 1.1.1996 only. Sd/- (Dr K.D. Gaur) Administrative Officer”

7. On 24 April 2008, the ICSSR issued the following Office Order, revoking and withdrawing the earlier Office Order dated 31 May 2000 supra: “F. No. 8-2/2008-09-A OFFICE ORDER 24th April, 2008 Consequent upon the decision taken by the Policy, Planning and Administration Committee (PPAC) at its 65th meeting held on 29 January 2008 based on the recommendations of Grievance Redressal Committee (GRC) and its endorsement by the Council at its 108 Meeting held on 24 March 2008, the Office Order No. F. No. 19-21/98-A dated 31.5.2000 stands revoked and withdrawn with immediate effect. Consequently, the Office Order No. F. No. 19-21/98-A dated 17.03.1999 based upon the decision taken by the Council in its 83rd Meeting held on 16 September 1998 shall remain effective. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 This issue is with the approval of the Competent Authority. (Dr. K.D. Gaur) Administrative Officer”

8. Consequent on acceptance of the recommendations of the 5th Central Pay Commission, the Department of Personal and Training3, vide Office Memorandum dated 9 August 1999, introduced the Assured Career Progression4 Scheme, available to all categories of civilian employees of the Central Government. Under the ACP Scheme, an employee who did not on earn any promotion for 12 years was entitled to a financial upgradation in accordance with the Scheme, with a 2nd financial upgradation after 24 years.

9. Vide the following Office Order dated 8 July 2008, the appellant was granted her 1st financial upgradation under the ACP Scheme with effect from 1 September 2001 to the scale of ₹ 8000-275-13500, reckoning her initial appointment from 13 July 1989: “F. No. 3-4/2008-A (Vol-1) Date: 08.07.2008 OFFICE ORDER Consequent upon introduction of Assured Career Progression (ACP) Scheme for the Central Civilian Employees as contained in the DOP&T office memorandum No. 35035/1/97/- Estt (D) dated 9th August, 1999, the competent authority of the Council has approved the 1st 2nd financial upgradation on completion of 12/24 years of regular service in respect of the following employees of the Council. Their present pay scales and upgradation scales are as under: Signature Not Verified 3 "DOPT" hereinafter 4 "ACP" hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 S.No Name and Designation 8

Smt. Alka Srivastava (R.A.) Present Pay Scale ₹ Upgradation Pay Scale ₹ Date of Upgra- dation ***** 5500-175-9000 ***** 8000-275-13500

01.09.2001 The above financial upgradation shall be purely to the official concerned and shall have no relevance to his/her seniority position. As such, there shall be no additional financial upgradation for the official on this ground that the junior officials in the grade has got higher pay scale under the ACP Scheme. The pay of the officials shown shall be fixed under the provision of FR 22(1) subject to minimum financial benefit of ₹ 100/– as per the DOP&T Office Memorandum No. 1/6/97-Pay I dated 5th July, 1999. The financial benefit allowed under the ACP Schemeshall be final and no pay fixation shall accrue to them at the time of regular promotion, i.e. posting against a functional post in the higher grade. The above upgradation will be further subject to the terms and conditions stipulated in the DOP&T OM No 35035/1/97-Estt (D) dated 9.8.1999. Sd/- (Dr K.D. Gaur) Administrative Officer”

10. By ICSSR Office Order dated 9 April 2009, the appellant was promoted as Assistant Director in the pay scale of ₹ 15600-39100 with Grade Pay of ₹ 5400 with immediate effect.

11. By DOPT OM dated 19 May 2009, following recommendations of the 6th CPC, the Modified Assured Career Progression5 Scheme was introduced, whereunder civilian Central Government employees were entitled to three financial upgradations on completion of 10, 20 and 30 years of regular service without promotion. Signature Not Verified 5 "MACP" hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024

12. Consequent on the recommendations of a Departmental Promotion Committee6 which met on 12 April 2018, the appellant was promoted as Deputy Director (Research) on regular basis in the pay scale of ₹ 67000-208700 with effect from the date of assumption of charge of the post. She was to be on probation for 2 years. In view of the fact that the Appellant had already been granted upgradation under the MACP scheme in the grade pay of ₹ 6600 and had availed benefit of fixation of pay accordingly, the Office Order stated that her pay would not be refixed on promotion.

13. On 21 September 2019, the appellant addressed a representation to the ICSSR, seeking correction in para 3 of Office Order dated 29 October 2022 supra, by replacing the word “and”, in the said paragraph with the word “on”. In other words, the appellant desired the sentence, in the said paragraph, which read “The notional fixation of pay shall not confer any rights to Mrs Alka Srivastava to claim any seniority and regularisation from the date of her initial appointment”, to read “The notional fixation of pay shall not confer any rights to Mrs Alka Srivastava to claim any seniority on regularisation from the date of her initial appointment”.

14. The said representation was rejected by the ICSSR by a terse communication dated 18 March 2021, which merely stated that the appellant’s request had been examined in detail, and that it had not been found feasible to accede to it. Signature Not Verified 6 DPC hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024

15. On the same day, i.e. 18 March 2021, the ICSSR issued Office Order 7/2021, retrospectively withdrawing the benefits of 1st ACP and 2nd MACP, granted to the appellant with effect from 1 September 2001 and 13 July 2009, and re-fixing the appellant’s pay. The Office Order, inasmuch as it constitutes the substratum of the challenge by the appellant, deserves to be reproduced, in extenso, thus: “INDIAN COUNCIL OF SOCIAL RESEARCH (Administration Division) F. No. A (47)/89-A Dated: 18.03.2021 OFFICE ORDER NO. 7/2021 With the approval of the Competent Authority, the pay of Smt. AlkaSrivastava, Deputy Director, after withdrawing the benefits of Ist ACP and 2nd MACPgranted w.e.f. 01.09.2001 and 13.07.2009 respectively, is re-fixed as under: Date of Regularization of Service SNo 1 1.

3. 4. 5. 6.

7. 8. 9. Date 2 31.08.2001

01.09.2001 01/01/2002 01.09.2002 01.01.2003 01/07/2003 30/06/2005

01.07.2005 02.09.2005 01.01.2006

01.07.2006 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 Pay Drawn 3 6900/- (5500-175-9000) (Granted Ist ACP) 8000/- (8000-275-13500) - 8275/- -do- On EOL for one-year w.e.f. 30/06/.2003 to 29/06/2004 Further extended by one more year w.e.f. 01/07/2004 to 30/06/2005 8275/- 8550/- After implementation of 6th CPC PB 2 (9300- 34800) 15,910+5400= 21,310 16,550 + 5400 =

01.01.1996 Pay re-fixed 4 6900 (5500-175- 9000) -do- (Withdrawal of Ist ACP) 7075/- 7250/- - - 7250/- -do- 7425/- 6th CPC 13,820 + 4200=18,020 14,360+4200 = 18,560/-

13. 14.

18. 19. 20.

24. 25. 26.

27. 28. 29.

01.07.2007

01.01.2008

01.07.2008 09.04.2009

01.07.2009

13.07.2009

01.07.2010

01.07.2011 01.07.2012 01.07.2013

01.07.2014

01.07.2015

01.01.2016

01.07.2016 01.07.2017 13.04.2018

01.07.2018 01.07.2019 01.07.2020 21,950 17,210 + 5400 = 22,610 -do- 17,890+5400=23,290 Promoted as AD in the pay band 9300- 34800+5400 GP 18,590+5400 = 23,990 -do- Granted 2nd MACP (15600-39100) 19,310+6600= 25,910 20,090 + 6600 = 26,690 20,890+6600=27,490 21,720 + 6600=28,320 22,570 + 6600=29,170 23,450 + 6600 = 30,050 24,360+6600= 30,960 After implementation of 7th CPC L-II (56100-1,77,500) 80,900 83,300/- 85,800/- Same on promotion to the post of Deputy Director 88,400 91,100 93,800 14,920+4200 = 19,120 Granted 1st ACP in pay 9300- 34800+5400 GP 15,500+5400=20,900 16,130 + 5400 = 21,530 -do- Promoted as AD in the pay band 9300- 34800+5400 GP 16,780+5400= 22,180 -do- (Withdrawal of 2nd MACP) 17,450+5400 = 22,850 18,140 + 5400 = 23,540 18,850 + 5400 = 24,250 19,580 + 5400 = 24,980 20,330 + 5400 = 25,730 21,110 +5400=26,510 Granted 2nd MACP 21,910 + 6600 = 28,510 Implementation of 7th CPC 74,000 76,200/- 78,500/- -do- 80,900 83,300 85,800 Date of Next Increment (if otherwise admissible) on 1st July 2021. This issues with the concurrence of Finance Branch and approval of the Competent Authority. To, Smt. Alka Srivastava Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 (Ashish Deolia) Administrative Officer Deputy Director”

16. The appellant represented against the above Office Order dated 18 March 2021, on 9 April 2021. She submitted that, as her date of regularisation ought to have been 13 July 1989, she had rightly been granted her 1st ACP and 2nd MACP with effect from 1 September 2001 and 13 July 2009 respectively and that, therefore, there was no justification for withdrawing the said benefits.

17. The Appellant also petitioned this Court by means of WP (C) 13454/2021, which was disposed of, by this Court, vide order dated 2 December 2021, recording the statement of learned Counsel for the ICSSR that a Committee had been constituted to consider the representation dated 9 April 2021 of the appellant and that, pending the decision of the Committee, no coercive action, including action for recovery of any amounts paid to her, would be taken against the appellant.

18. Ultimately, the representation of the Appellant was rejected by the ICSSR by the following order dated 4 March 2022: “No. F.A-(47)/89-A To Date: 04.03.2022 Smt. Alka Srivastava, Deputy Director, Indian Council of Social Science Research, New Delhi-110067. Subject: Request for rectification of Office Order regarding regularization. Signature Not Verified Madam, Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 I am directed to refer to your request dated 9 April, 2021 addressed to the Member Secretary, ICSSR, New Delhi and copy endorsed to the undersigned requesting to review the matter by an Administrative Committee and to say that as per your request, the Competent Authority of the ICSSR, constituted a three members Committee to examine the matter. The Committee has examined the grievances raised by you in the aforesaid request along with earlier representations dated 21.09.2019 and 13.03.2020 in detail as per the office records available with reference to the rules on the subject and concluded/recommended as under:- (a) The initial appointment of Smt. Alka Srivastava as R.A. on ad-hoc basis was made in blatant violation of mandatory provision of SR 9 of ICSSR Service Regulations 1970 from 13.07.1989 and also on the date of her regularization w.e.f. 1.1.1996 as she did not meet the eligibility criteria prescribed in the recruitment rules for the post of R.A. (b) As per the report of the High Powered Committee (Justice V.S. Malimath Committee), Smt. Alka Srivastava did not possess all the prescribed qualifications/experience. (c) As per the report of the High Powered Committee, she did not have any order of appointment in her favour between 1-9-1996 and 25-9-1997. The said committee also found that Smt Alka Srivastava did not perform duty during the said period from 01.09.1996 to 25.09.1997 not on account of any lapse on the part of the Council. (d) As per the Seniority list of the officers in the cadre of Research Assistant as on 1-1-1997, the services of Smt. Alka Srivastava had been recommended to be regularized w.e.f. 1-1-1996 and also notional fixation of pay w.e.f. 1-1- 1996. (e) As per the rules [F.R.17-A-(iii)] of the CCS (Pension) Rules, 1972 'In the case of an individual employee, remaining absent unauthorisedly or deserting the post, shall be deemed to cause an interruption or break in the service of the employee. So far as applicability of CCS (Pension) Rules, 1972 to the employees of the ICSSR is concerned, as per item No. 13, a resolution was adopted by the Administration Committee at its 2"' meeting held on 30- 08-1969 wherein it was agreed that rules and orders of the Central Government may apply to the staff in matter which Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 are not specifically covered by the Council's own rules, regulations and orders. (f) The period which was not considered as qualifying service cannot be counted for the purpose of granting increments/ financial up gradation under MACPs which is contrary to the provisions (FR 26 (1), GIDs (2), (4), Als (1),(2) thereunder, and GID (3), FR 54.). (g) The Departmental Screening Committee for Group 'A' posts which was constituted to consider and review grant of financial up-gradation under ACP/MACP had clearly mentioned that as per records it has been found that in her regularization order, she has been regularized w.e.f. 01.01.1996. (h) When a person enters a temporary employment or gets engagement as a contractual worker or casual worker or ad-hoc employee and the engagement is not based on a proper selection as per the rules or procedure, he/she is aware of the consequences of the appointment being temporary casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed / regularized in the past. As such the theory advanced by Smt. Alka Srivastava cannot be accepted. The applicant does not have any legal right to enforce. (i) As per the policy, the benefits under MACPs are to be granted in the Standard hierarchy of Grade pays/ pay level and not in the promotional hierarchy. The recommendations of (j) the High Powered Committee including in respect of Smt. Alka Srivastava were considered opinion and were also accepted by the Council. This is not a typographical or clerical error which could be rectified. As such, the substitution of word 'and' in para 3 (three) of Office Order dated 29-10-2002 with word 'on' cannot be done and should not be done as it will virtually amount to reviewing the earlier decision made effective by the Council. Smt. Alka Srivastava was not engaged for the (k) period w.e.f. 11.03.1996 to 25.09.1997 (563 days). This period was not regularized by granting any leave, but treated as technical break. As per the provisions of relevant rules, such absence amounts to the forfeiture of the entire past service. Further, she remained absent/ without pay i.e. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 to 20.02.1991 (20 days), 15.08.1991

01.02.1991 08.09.1991 (25 days), 30.06.1992 to 04.07.1992 (5 days) and 15.02.1993 to 30.06.1993 (136 days). The committee also noted that Smt. Alka Srivastava (l) has submitted the representation dated 21.09.2019 against the Office Order dated 29.10.2002 which is extremely belated and afterthought. Smt. Alka Srivastava submitted the representations in question at this belated stage only to create a cause of action. The committee is of the view that such belated representations deserve to be rejected on the ground of delay apart from the fact that there is no merit in the claim. Accordingly, the Committee has recommended as under:- (1) The substitution of the word 'and' with 'on' cannot be done in the recommendations of the High Powered Committee as the report of the Committee already been accepted by the Competent Authority. Even otherwise, the recommendations of the High Powered Committee cannot be changed or modified by any other committee as even mere substitution of the word "and" with "on" has huge implications. (2) The request of Smt. Alka Srivastava, Deputy Director for counting of her services as regular w.e.f. 13-7- 1989 instead of 1-1-1996, is an after thought and does not have any merit. (3) Grant of financial benefits under ACP/MACP to Smt. Alka Srivastava may be done after taking into consideration the provisions mentioned in above paras “f”& “I”. (4) As per the relevant provisions of Rules/Regulations, the regular services of Smt. Alka Srivastava should have been counted from 26-9-1997 when she resumed her duties after technical break for 563 days. In view of the above recommendations made by the Administrative Committee, the Competent Authority of the ICSSR has not acceded to the request dated 09.04.2021 of Smt. Alka Srivastava, Deputy Director, ICSSR, New Delhi. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024 Yours faithfully (Ashish Deolia) Administrative Officer”

19. Aggrieved by the aforesaid rejection of her representation, the Appellant petitioned this Court by means of WP (C) 9434/20227. Though there were seven prayers in the writ petition, the Appellant restricted the relief sought by her to prayers (iv) and (v). As pressed, therefore, the prayer clause in the writ petition read thus: “In the premises … the Hon’ble Court may be pleased to: ***** hold and declare that (a) the impugned Office Order (iv) No. 7/2021 bearing F. No. A(47)/89-A dated 18-03-2021 (Annexure P-31), (b) the order bearing F. No. A(47)/89-A (Annexure P-32) and (c) the impugned decision bearing F. No. A(47)/89-A dated 04-03-2022 (Annexure P-34) are ultra virus and violated of the Petitioner’s fundamental rights under Articles 14, 16(1) and 300 A of the Constitution, and vitiated by legal malafides; (v) issue an appropriate writ, order or direction in the nature of Certiorarified mandamus striking down the impugned orders and decisions being dated 18.03.2021 i.e., Annexures P-31, P-32 and dated 04.03.2022 i.e., P-34 respectively as mentioned in prayer (iv) above and directing (a) her service proper to be counted from 13-07- 1989 as recommended by the Justice Malimath Committee and already accepted and approved by the Plenary Council of ICSSR, Respondent No. 1 and (b) Grant of MACP on completion of 30 years of service with effect from July 2019.”

20. WP (C) 9434/2022 stands dismissed by the learned Single Judge by judgement dated 22 February 2024. Signature Not Verified 7 Alka Srivastava v. Indian Council of Social Science Research & Others Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 14:38:29 LPA 347/2024

21. The present appeal, preferred under Clause X of the Letters Patent as applicable to this Court, assails the said judgement. The Impugned Judgement

22. The learned Single Judge has correctly noted the two issues arising for consideration as : “a. Whether the petitioner is entitled to regularisation from her initial date of joining i.e., 13 July 1989, Whether the recovery of the benefits by the Respondent no. 1 b. granted to the petitioner under ACP/MACP illegal”.

23. Re. Issue a.

23.1 On Issue a, the Single Judge, after quoting extensively from the judgements of the Supreme Court in State of Karnataka v. Uma Devi8, Official Liquidator v. Dayanand9 and State of Rajasthan v. Daya Lal10, proceeds to hold that an ad hoc/temporary/contractual employee has no vested right to seek regularisation, despite having worked for a long time with a public authority, the only exception being in the case of a temporary employee, appointed against the sanctioned post in accordance with the applicable Recruitment Rules. The learned Single Judge thereafter quotes from the recommendations of the Malimath Committee, and observes that the recommendations noted that, against the leave availed by her from 11 March 1996 till 2 September 1996, the Appellant was entitled only to 2 ½ days of