CWP No.8604 of 2007 etc. 1 IN THE HON’BLE HIGH COURT OF PUNAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 9.9.2010 1.CWP No.8604 of 2007 (O&M) Dr. Surindra Kumar Mishra and others …Petitioners Versus State of Haryana and another …Respondents 2.CWP No.7828 of 2007 Dr.Saubhgya Wati and others …Petitioners Versus State of Haryana and another …Respondents 3.CWP No.10429 of 2006 Dr. Swarnjit Singh Sidhu and others …Petitioners Versus State of Haryana and another …Respondents 4.CWP No.1034 of 2009 Ms.Renuka Gambhir and others …Petitioners Versus State of Haryana and another …Respondents 5.CWP No.1961 of 2006 Ram Kumar Chauhan & Others …Petitioner Versus CWP No.8604 of 2007 etc. 2 State of Haryana and another …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.KL Arora, Advocate for petitioners Mr.RS Kundu, Addl.A.G., Haryana Mr.SS Malik, Advocate Based upon the identical and common questions of law and facts, These petitions are disposed of by this common judgment. The issue relates to counting of ad hoc service for the purpose of determination of seniority in the service. The petitioners in all these writ petitions were initially engaged on ad hoc basis having been sponsored by the Employment Exchange and on being selected by a Committee of officers constituted for the purpose of making selection. The petitioners continued to work on ad hoc basis as Lecturers in different subjects spreading over a period of six to ten years and in some cases upto 12 years. Their services were later on regularized by the Government. The petitioners are claiming seniority by counting their ad hoc service towards total length of service rendered by them. Representation of one of the writ petitioners,namely, Sajjan Singh has been rejected vide order dated 24.5.2006 (Annexure P-10 impugned in CWP No.8604 of 2007). The facts are being noticed from CWPNo.8604 of 2007. The petitioners in this case were registered with the Employment Exchanges. Posts of lecturers in different subjects were advertised for making ad hoc appointment. It is alleged that the State also requisitioned the candidates from the different Employment Exchanges. It is further stated that a Selection Committee comprising of DPI (Colleges), an IAS Officer, a subject expert and the Deputy Director (Colleges), Haryana was constituted. The Committee interviewed the candidates and the petitioners were selected as Lecturers in different subjects. It is stated that the petitioners were duly qualified and eligible as per the qualifications prescribed under the recruitment rules. The appointment of the petitioners was made on ad hoc basis. The CWP No.8604 of 2007 etc. 3 orders of appointment of some of the petitioners are placed on record as Annexure P-1 (Colly. In CWP No.8604 of 2007). From the appointment order dated 21.9.1979, it appears that the three candidates were appointed as Lecturers (College Cadre) purely on ad hoc basis in the grade of 700/1600 against vacant posts in Government Colleges, Narnaul and Rohtak, respectively. One of the conditions of appointment was that their service can be terminated at any time without assigning any reason. The candidates were asked to join. It is stated that some of the appointees continued from 1976 to 1988 and thereafter their services were regularized through Haryana Public Service Commission. The petitioners have also placed on record two regularization orders (Annexures P-2/1 and P-2/2). From the perusal of these orders, it appears that appointments have been made on the recommendation of Haryana Public Service Commission. It is stipulated that the posts are temporary, but likely to continue. The appointees were placed on probation of two years in the first instance. The confirmation is subject to availability of posts and seniority and service record. In respect of the seniority, following condition was imposed:- ix)Your seniority will be fixed in accordance with the departmental rules and this appointment will not affect the inter-se seniority of the candidates recommended by HPSC.” The service of the regularized employees were later confirmed. One of the confirmation letters dated 15.6.1993 is placed on record as Annexure P-3. The petitioners have placed on record the details of their ad hoc engagement, dates of joining on regularization, dates of confirmation and also dates of award of senior scale and selection grade. It is alleged that while granting them senior scale and selection grade, their ad hoc service has been counted. It is further alleged that even during their ad hoc service, they were granted the benefit of increments, leave and other service benefits as were available to the regularly appointed Lecturers. The petitioners have further stated that they were granted the benefit of the revised pay scale in accordance with the guidelines of CWP No.8604 of 2007 etc. 4 University Grants Commission and their past service was counted as per the government letter dated 8.12.2000 (AnnexureP-4). The petitioners have heavily relied upon UGC guidelines, which, inter-alia, provide for counting of post service. The guidelines relied upon by the petitioners are placed on record as AnnexureP-5. The relevant extract of the same is reproduced as under:- “9.COUNTING OF PAST SERVICE (1)Previous Service, without any break as a Lecturer or equivalent, in a University, College, National Laboratory, or other scientific organizations e.g. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as a UGC Research Scientist should be counted for placement of lecturers in Senior Scale/Selection Grade provided that: (i)The post was in equivalent grade/scale of pay as the post of a Lecturer. (ii)The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer. (iii)The candidates who apply for direct recruitment should apply through proper channels. (iv)The concerned Lecturers possessed the minimum qualifications prescribed by the UGC for appointment as Lecturers. (v)The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/Central Government/Institution’s regulations. (vi)The appointment was not ad hoc or in a leave vacancy of less than one year duration. Ad hoc service of more than one year duration can be counted provided: CWP No.8604 of 2007 etc. 5 (a)The adhoc service was of more than one year duration. (b)The incumbent was appointed on the recommendation of duly constituted Selection Committeeand (c ) The incumbent was selected to the permanent post in continuation to the adhoc service, without any break.” It is contended on behalf of the petitioners that even under the aforesaid guidelines of the UGC, the petitioners are entitled to benefit of their past service rendered on ad hoc basis for grant of senior scale and selection grade. As a matter of fact, the petitioners were granted senior scale and selection grade by counting their ad hoc service. One of the petitioners, namely, Sajjan Singh, Lecturer made a representation dated 23.8.2005 (AnnexureP-9) which has been rejected vide order dated 24.5.2006 (AnnexureP-10). It is also the case of the petitioners that some of the employees who were working in private college taken by the Government have been granted the benefit of ad hoc service rendered and reference is made to one Sh. R.K.Arora. The claim of the petitioner is, however, resisted by the respondents through their detailed reply. It is the stand of the respondents that ad hoc service rendered by the petitioners cannot be counted towards the seniority in terms of Rule 11 of the Haryana Education (College Cadre) Group B Service Rules,1986 (hereinafter referred to as “the 1986 Rules”), which inter alia, requires continuous service for the purpose of seniority. It is stated that only a regular appointee is entitled to seniority in the cadre of service and thus, the seniority of the petitioners can only be reckoned from the date of their regularization and not from the date on ad hoc appointment. Both the sides have relied upon various judgments of this Court and of the Hon’ble Supreme Court. The respondents have raised the question of non-impleadment of the affected persons as parties to the petitions whose seniority is likely to be effected if the petitioners are granted the benefit of ad hoc service. It is further pleaded that the various seniority lists were issued from time to time wherein the petitioners have been shown junior to various candidates. It is mentioned that the first seniority list was issued showing the position as CWP No.8604 of 2007 etc. 6 exists on 4.2.1987. The second seniority list showing the position on 1.1.1993, the third seniority list showing the position on 1.9.1997 and the 4th one showing the position on 1.1.2004. Petitioners have been shown even below candidates of the colleges taken over by the State. The respondents have also placed on record notification dated 9.12.1992 whereby rules under proviso to Article 309 of the Constitution of India was notified for fixation of seniority of the ad hoc Class II employees regularized w.e.f. 31.12.1990. The relevant rule governing the seniority is reproduced as under:- “The seniority of the ad hoc Class II employees so regularized with effect from the 31st December, 1990, vis-à- vis the Class II employees appointed on the same date on regular basis shall be determined with effect from 31st December, 1990. The inter-se seniority of such adhoc Class II employees shall be determined in accordance with the date of their joining the post on ad hoc basis. If the date of joining the post(s) on ad hoc basis by such ad hoc employees was the same, then an older employee shall rank seniority to an employee younger in age. If the date of appointment of the direct recruit and the date of regularization of ad hoc employee is the same, the direct recruit shall be senior.” According to the petitioners, their services are governed by the Punjab Subordinate Educational Service Rules, 1937 (hereinafter called the 1937 Rules). Rules relevant for the purpose of these petitions are reproduced as under:- “4.Appointments to posts in the service shall be made by- Authorities by whom appointments to be made (a)principals of colleges in the case of lecture assistants; (b)the Principal, Lawrence College, Ghoragali, in the case of dispensers or compounders. (c)the Director of Public Instruction, Punjab, in the case of all other posts: CWP No.8604 of 2007 etc. 7 Provided that, in all cases where the Director is the appointing authority, divisional inspectors, circle inspectresses, and principals of Government colleges may make a temporary or officiating appointment other than that of a head of an institution, if the period of the appointment does not exceed four months in duration. 6.Method of recruitment. Recruitment to the Service shall be (a) by direct appointment, or (b) by transfer from departments of Government other than the Education Department. In accordance with the rules prescribed in this behalf and when a vacancy occurs or is about to occur in the Service, the appointing authority specified in rule 4 shall determine the manner in which such vacancy shall be filled. 8.The seniority of members in the various grades of the Service shall be determined by the date of confirmation, which for the purpose of this rule shall be the day following the expiry of the period of probation: Provided that if two or more members are confirmed in the same class of posts on the same date, their seniority shall be determined by the Director, whose decision shall be final. Appendix A. Subordinate Educational Service-Men's Branch Section Number of sanctioned posts Class Old rates of pay Revised rates of pay for those recruited after 31st December, 1930 Designation of Post. Anglo- vernacular 101 1 Rs. 200-10-250 150-8-190 District Inspector of Schools; Assistant District Inspector of schools; Assistant District Inspector of Schools for Physical Training; Lecturer and Teacher (in colleges); Head Master; Second Master, English master; Science Master; Commercial Teacher; Agricultural Teacher; Physical Training Supervisor. CWP No.8604 of 2007 etc. 8 APPENDIX D Description of section Designation of posts Class Minimum educational qualifications Anglo-Vernacular (Men's Branch) Lecturer or teacher in Government Colleges I to IV M.A. or M.Sc. of a recognized University with or without training. Under 1937 Rules, the posts of Lecturers and teachers in Colleges are specified under Appendix A and D, respectively. Under Rule 4 of the 1937 Rules the appointing authority for these posts is the Director of Public Instruction, Punjab though the appointment upto four months can be made by the Principals of the Government Colleges on temporary or officiating basis. Rule 6 prescribes the method of recruitment. Only two modes are prescribed- (a) by direct appointment or (b) by transfer from departments of Government other than the Education department. This rule further empowers the appointing authority specified in Rule 4 to determine the manner in which the vacancy shall be filled as it occurs. Rule 8 deals with the seniority of members of service and seniority has to be fixed by the date of confirmation, which for the purpose of this Rule shall be the day following the expiry of the period of probation. Mr.K.L.Arora, learned counsel for the petitioners submits that since the petitioners were engaged on ad hoc basis prior to 1986 Rules, their services were governed by 1937 Rules and it was only the Director who was the appointing authority and he had the authority and jurisdiction to lay down the procedure for making appointment. It is accordingly contended that the appointments were made by seeking requisition of candidates from the Employment Exchanges and selection by a Committee of officers which was a valid procedure prescribed at the relevant time and thus the appointment of the petitioners was by adopting due process of law and hence they are entitled to seniority from the date of their appointment. To the contrary, it is contended on behalf of the State that the petitioners were regularized after the commencement of 1986 Rules and their service condition including seniority has to be governed and regulated by 1986 Rules. CWP No.8604 of 2007 etc. 9 1986 Rules relevant for the purpose of present petition are reproduced here under:- “2.Definition.- In these rules, unless the context otherwise requires, XXX XXX XXX (b)”direct recruitment” means an appointment made otherwise than by promotion from within the service or by transfer of an officer already in the Service of Government of India or any State Government; XXX XXX XXX (f)”Service” means the Haryana Education (College Cadre) Group B Service. XXX XXX XXX 11.Seniority.- (1) The seniority inter se of the members of the Service shall determined by the length of continuous services on any post in the service: Provided that in case of members appointed by direct recruitment the order of merit determined by the Commission or other recruiting authority shall not be disturbed in fixing the seniority: Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows:- (a)a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer; (b)in the case of members appointed by transfer from different cadres, their seniority shall be CWP No.8604 of 2007 etc. 10 determined according to pay, preference being given to a member who was drawing a higher rate of pay in his previous appointment; and if the rates of pay drawn are also the same, then by the length of their service in the appointments, and if the length of such service is also the same the older member shall be senior to the younger member. (2)On amalgamation of the men and women branches, the seniority of the members holding the same class of posts and in the same or identical scales of pay shall be determined by the length of their continuous service in the post: Provided that their inter se seniority in their respective branches shall not be disturbed: Provided further that in case two or more members having the same length, or continuous service, the old member shall be senior to a younger member and if their age is also the same, the member who was drawing higher rate of pay shall be senior to the member who was drawing lesser pay.” The judgments relied upon by the petitioners are noticed here-in-after. In the case of the Direct Recruit Class-II Engineering Officers' Association and others v. State of Maharashtra and others, AIR 1990 Supreme Court 1607, the Hon'ble Supreme Court has observed as under:- “44. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according CWP No.8604 of 2007 etc. 11 to the date of his confirmation......” In the case of Sports Authority of India and another vs. Adarsh Mehta and another, 2004(4) SCT (DB) 122, a Division Bench of this Court upheld the judgment of the trial court and the Central Administrative Tribunal whereby the ad hoc period of service rendered by the employee was directed to be counted towards the seniority. It has been observed that the appointment was as per procedure and after due creation of the post. It has been further observed that the employer by different orders has treated the ad hoc employee as part of their service cadre by granting annual increments etc. In the case of Rudra Kumar Sain and others vs. Union of India and others, 2000(4) RSJ SC 1, a Constitution Bench of Hon'ble Supreme Court, while considering the claim of seniority of the promoted Judicial Officers on ad hoc basis towards the seniority as against the direct recruits observed as under:- “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 this 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.” Further reference is made to a Division Bench judgment of this Court passed in CWP No.8604 of 2007 etc. 12 CWP No.2409 of 2008 (Vijay Singh and others vs. State of Haryana and others, decided on 18.12.2008. In this case, a direction has been issued to treat ad hoc service rendered by the employee appointed on being sponsored by the Employment Exchange on regularization towards the seniority. Under identical circumstances, Hon'ble Surpeme Court upheld the claim of Lecturers in the Education Department for seniority appointed under 1937 Rules, noticed here-in-above by similar method as the petitioners in Writ Petition (Civil) No.368 of 1987 (Dr.Gagan Inder Kaur & Ors. vs. Union Territory of Chandigarh & Ors. Decided on 17.10.1995). The relevant observations are noted as under:- “5.In view of the facts mentioned above, it appears that the appointment of the petitioners and other Lecturers in the Union Territory of Chandigarh, who were appointed on ad hoc basis during the period 1977 till the publication of the 1990 rules, though described as an ad hoc appointment, is really an appointment on regular basis made in accordance with the procedure that was required to be followed for making a regular appointment under the Punjab Rules of 1937 which were in force at that time. The said appointments have been described as being ad hoc in nature on the erroneous impression that consultation with the UPSC was necessary after 1977 for making regular appointment on the post. Since the Punjab Rules of 1937 had continued in force, consultation with UPSC was not required for the post of Lecturers which continued to be a Class III post till the publication of the 1990 Rules on February 21, 1991........” CWP No.8604 of 2007 etc. 13 To the contrary, respondents have placed reliance upon the case of Excise Commisioner, Karnataka & Anr. vs. Sreekanta (SC), 1993(2) SLR 339, 1995(1) PLR 151 and State of Punjab and Anr. vs. Ashwani Kumar and Ors., 2009(1) RSJ 452. It is also pleaded that Rule 20 of 1937 Rules relating to appointment of lecturers stands repealed. The petitioners cannot claim the benefit of appointment under 1937 Rules. I have considered respective contentions of learned counsel for parties. The moot question is whether initial appointment of the petitioners was in accordance with rules or it was a fortuitous appointment disentitling them the benefit of ad hoc service. It is admitted case of the parties that all the petitioners were appointed, though on ad hoc basis, but prior to coming into force of 1986 Rules. The posts of Lecturers in the Colleges are specified under Appendix A and D, respectively. Their qualifications are prescribed in Appendix B. Under Rule 4 of the 1937 Rules, the Director Public Instructions, Punjab is appointing authority. Even though the names of the petitioners were sponsored by the Employment Exchange, however, their selection was made by a duly constituted Committee which fact is not disputed in the reply. Rule 6 provides two modes of recruitment i.e. by Direct recruit or by transfer. The petitioners have been appointed by direct recruitment. No quota is fixed for direct recruitment or otherwise. Rule 6 further empowers the appointing authority to re-determine the manner in which the vacancy is to be filled as and when it occurs. The competent authority filled up vacancies by direct recruitment. It is also mentioned in the writ petition that besides sponsorship by the Employment Exchanges, a public advertisement was also issued which fact is also not disputed in the reply filed by respondents. The appointment of the petitioners in this manner cannot be said to be contrary to rules or against the mandate of Articles 14 and 16 of the Constitution of India. Under 1986 Rules, the appointment is to be made on the recommendations of the Commission which was not the requirement under 1937 Rules. 1937 Rules deals with seniority which has to be fixed by the date of confirmation. It is pertinent to note that even when the petitioners were regularized, their CWP No.8604 of 2007 etc. 14 cases were duly considered by the Haryana Public Service Commission as is evident from the regularization orders (Annexures P-2/1 and P-2/2. Even under Rule 11 of the 1986 Rules dealing with seniority, it is provided that the seniority shall be determined by the length of continuous service on any post in the service. There is no requirement of a regular service under this rule even. The petitioners were appointed against the sanctioned posts through a duly constituted selection Committee. They have been continuing on the posts borne on the cadre of service. Their appointment cannot be said to be fortuitous in nature, notwithstanding the fact that the same have been termed as “ad hoc”. As a matter of fact, ratio of the judgment of Hon'ble Supreme Court in the case of (Dr.Gagan Inder Kaur & Ors. (supra) is applicable on all fours. These petitions are accordingly allowed. Respondents are directed to count the ad hoc period of service rendered by the petitioners towards the seniority. The petitioners shall be entitled to all the consequential benefits. Copy of this order be placed on record of each concerned file. (PERMOD KOHLI) JUDGE Pronounced on 9 .9. 2010 MFK NOTE:Whether to be reported to reporter or not:YES