IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2773/2008 Decided on:27.5.2009 Dr. Arun Sirkeck and others. …Petitioners. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Mr. Ajay Mohan Goel, Advocate. For the Respondent : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that petitioner No.1 was appointed Veterinary Officer on ad hoc basis on 30.7.1988. He was appointed on regular basis through Himachal Pradesh Public Service Commission vide order dated 3.6.1992. He joined his duties on 18.6.1992. Petitioner No.2 was appointed initially as Veterinary Officer on 30.7.1988 on ad hoc basis. He joined on 3.3.1989. He was duly selected through the Himachal Pradesh Public Service Commission. He joined his duties on 2.6.1992. Petitioner No.3 was appointed on ad hoc basis on 23.9.1993 as Veterinary Officer. He was appointed on regular basis through Himachal Pradesh Public Service Commission on 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 13.3.1995. In sequel to Annexure A-1 dated 23.6.2000, the State Government had decided to grant four tier pay scales to eight services, including Animal Husbandry Veterinary Class-1 Services. A bare perusal of Annexure A-1 reveals that the Veterinary Officers were granted the pay scale of Rs. 7880-13500 with initial start of 8000/-. The Himachal Pradesh Health Services Class-1 (Generalist) were also granted initial pay scale of Rs. 7880-13500 with start of Rs. 8,000/-. The State Government vide Annexure A-2 dated 11.12.2000 took a decision to the effect that those Medical Officers who have been regularized after rendering ad hoc service, their pre-recruitment ad hoc service shall be counted for the purpose of Assured Career Progression Scheme and the decision shall be applicable to those Medical Officers only who were working on ad hoc basis up to the issuance of order dated 23.6.2000. However, vide Annexure A-3 dated 31.3.2001, it was decided to grant relaxation of conditions imposed by the Finance Department under letter 23.6.2000 qua cut off date. It was decided that the cut off date for coutning of ad hoc service would be 31.12.2000 instead of 23.6.2000. The petitioners served upon the Animal Husbandry Department a notice under section 80 of the Code of Civil Procedure for counting of ad hoc services rendered by them for the purpose of granting them four tier pay scales. The principal stand of the respondents as per the contents of the reply is that the petitioners cannot claim parity with the Himachal Pradesh Health Services on the ground that they have not furnished bonds to serve the State of Himachal Pradesh at the time when they were appointed on ad hoc basis. The other ground for denying the benefit is the issuance of Annexure R-IV dated 12.1.2004. Mr. Ajay Mohan Goel, Advocate has strenuously argued that once the respondent-State has taken a conscious decision on the basis of 3 Annexure A-1 to introduce four tier pay scales to eight services, including the Animal Husbandry Veterinary Class-I Services, his clients could not be discriminated against by the respondents by not counting the ad hoc services rendered by them for the purpose of Assured Career Progression Scheme/ four tier pay scales. He then argued that his clients could not be discriminated against by the respondent-State only on the ground that they had not furnished bonds to serve the State at par with the Himachal Pradesh Health Services Class-I (Generalist) and (Dental). He lastly contended that his clients are also discharging arduous duties and are entitled to get their ad hoc services counted. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that since the petitioners had not furnished the bonds at the time of their appointment on ad hoc basis to serve the State of Himachal Pradesh, their ad hoc period cannot be counted for the release of four tier pay scales. The learned Senior Additional Advocate General has relied upon Annexure R-IV dated 12.1.2004. I have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioners were appointed on ad hoc basis initially for a period of six months. Their period was extended from time to time. They have been regularly recruited through the agency of Himachal Pradesh Public Service Commission. They had joined their duties on regular basis on 18.6.1992, 22.6.1992 and 13.3.1995, respectively. A conscious decision has been taken by the State Government to introduce four tier pay scales for eight services mentioned in Annexure A-1. The pay scale of the petitioners and Himachal Pradesh Health Services Class-I (Generalist) and (Dental) is Rs. 7880-13,500 with initial start of Rs. 8,000/-. This pay scale has been granted taking into consideration the arduous duties 4 discharged by these three services. In other words, these are equal status posts. The respondents have decided to count the ad hoc services rendered by the doctors serving in the Himachal Pradesh Health Services Class-I (Generalist) and (Dental) for the purpose of release of four tier pay scales. This has been done on the basis of Annexure A-2 dated 11.12.2000. The rigours of Annexure A-1 were further diluted vide Annexure A-3 whereby the cut off date for counting of ad hoc services instead of 23.6.2000 was 31.12.2000. The expression ‘ad hoc’ has been succinctly explained by their Lordships of the Hon’ble Supreme Court in Rudra Kumar Sain and others versus Union of India and others, (2000) 8 SCC 25 as under: “15. So far as the terminology used in Singla's case (AIR 1984 SC 1595 : 1984 Lab IC 1659), namely 'ad hoc', 'fortuitous' and 'stop-gap', the same is quite familiar in the Service Jurisprudence. Mr. Rao, appearing for the High Court of Delhi, however contended before us that the said terminology should be given the same meaning, as was given in Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 : (AIR 1958 SC 36). In Dhingra's case, the Court was examining whether removal of an employee can be held to be a penal and whether Article 311 (2) of the Constitution can at all be attracted and the Court also observed that certain amount of confusion arises because of the indiscriminate use of the words "provisional", "officiating" and "on probation". We do not think that the concept or meaning given to those terminology in Dhingra's case (AIR 1958 SC 36) will have any application to the case in hand, where the Court is trying to workout an equitable remedy in a manner which will not disentitle an appointee, the benefit of his fairly long period of Service for the purpose of seniority, even though he possesses the requisite qualification and even though his appointment has been made after due consultation and/or approval of the High Court. 5 16. The three terms 'ad hoc', 'stop gap' and 'fortuitous' are in frequent use in service jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to "fortuitous". In Black's Law dictionary, the expression "fortuitous" means "occurring by chance", "a fortuitous event may be highly unfortunate". It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression "ad hoc" in Black's Law Dictionary, means "something which is formed for a particular purpose". The expression "stop-gap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need". 17. In Oxford Dictionary, the word 'ad hoc' means for a particular purpose, specially. In the same Dictionary, the word 'fortuitous' means happening by accident or chance rather than design. 18. In P. Ramanatha Aiyer's Law Lexicon (2nd Edition) the word 'ad hoc' is described as "for particular purpose, Made, established, acting or concerned with a particular and or purpose'. The meaning of word fortuitous event' is given as 'an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is 6 impossible to resist; a term synonymous with Act of God'. 19. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as 'ad hoc' or 'stop-gap'. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as 'fortuitous' in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a 'stop-gap' arrangement and appointment in the post as 'ad hoc' appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an (ad hoc, fortuitous or stop-gap) appointment can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre. 7 20. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In his view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be 'fortuitous/ad hoc/stop-gap' are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.” Petitioner No.1 was appointed on 30.7.1988. He has worked uninterruptedly till the date of his regular appointment on 18.6.1992. This appointment cannot be termed purely as stopgap or fortuitous or ad hoc. Similarly, petitioner No.2 was appointed on ad hoc basis as Veterinary Officer on 30.7.1988. He has also completed four years till his regular recruitment through the Himachal Pradesh Service Commission on 22.6.1992. This period can also not be excluded for the purpose of granting the benefit under Annexure A-1. Petitioner No.3 has also worked for a considerable period of two years from 23.9.1993 to 13.3.1995. It would be erroneous to exclude the services which the petitioners have rendered on ad hoc basis for the purpose of counting seniority for the release of four tier pay scales. They were in possession of essential educational qualification at the time of their recruitment. They have been clubbed together with seven remaining services of the State as per Annexure A-1. In the present case, the petitioners are similarly situated vis-à-vis the Medical Officers serving in the Himachal Pradesh Health Services 8 Class-I (Generalist) and (Dental). They could not be discriminated against by the State Government by not counting their ad hoc services at par with the Medical Officers serving in Himachal Pradesh Health Services Class-I (Generalist) and (Dental). The explanation given for not according this benefit to the petitioner is flimsy and artificial. The petitioners cannot be denied this benefit only on the ground that they have not furnished bonds at the time of their initial appointment on ad hoc basis. What was to be seen in fact by the respondents was that whether they have continuously worked on ad hoc basis till their regularization or not. The petitioners though appointed on ad hoc basis have worked uninterruptedly and they have been recruited on regular basis on the recommendations made by the Himachal Pradesh Public Service Commission. The Medical Officers serving in the Himachal Pradesh Health Services Class-I (Generalist) and (Dental) were appointed on ad hoc basis and their services were subsequently regularized on the basis of the recommendations made by the Himachal Pradesh Public Service Commission. The explanation made by the respondent-State on the basis of non-furnishing of bonds is artificial. Rather, it is a case of invidious discrimination. The petitioners have been clubbed together as per Annexure A-1 and they could not be discriminated against by the respondent-State for the purpose of grant of four tier pay scales. The services rendered by the petitioners on ad hoc basis till their regularization are required to be counted. The very idea of furnishing the bonds by the Medical Officers or for that matter by any employee is to serve the State for a particular period. In the present case, without furnishing bonds, the petitioners have worked uninterruptedly on ad hoc basis as Veterinary Officers. Thereafter their services were regularized and they are working as Veterinary Officers with the respondent-State. 9 The learned Senior Additional Advocate General has strenuously relied upon Annexure R-IV dated 12.1.2004. This letter would apply prospectively. The rights accrued to the petitioners on the basis of Annexures A-2 and A-3 cannot be taken away by a letter dated 12.1.2004. The petitioners are entitled to be treated at par with the doctors serving in the Himachal Pradesh Health Services Class-I (Generalist) and (Dental) on the basis of Annexures A-2 and A-3. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to count the services rendered by the petitioners on ad hoc basis for the purpose of four tiers pay scale for all intents and purposes. The respondents are directed to grant them all the benefits after counting their ad hoc services within a period of eight weeks from today. The petitioners are also held entitled to interest @ 9%. There shall, however, be no order as to costs. 27.5.2009 (Rajiv Sharma ), J. *awasthi*