Regular Second Appeal No.4238 of 2006 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 22, 2010 Gopi Chand Sedha ...Appellant VERSUS The State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Hari Pal Verma, Advocate, for the appellant. Mr.Sunil Nehra, Sr.DAG, Haryana, for the State. ***** RANJIT SINGH, J. The appellant is a Clerk in Excise and Taxation Department where he was appointed on adhoc basis on 10.3.1967. He joined the service on 15.3.1967 and served the Department till 28.2.1968 without any break. Thereafter, his services appear to have been terminated and he was relieved from the duties. He was again Regular Second Appeal No.4238 of 2006 (O&M) : 2 : re-appointed as a Clerk on regular intervals between 29.2.1968 and 17.8.1971. Subsequently, upon his due recommendation for his selection by S.S.S.Board, Haryana, the appellant was appointed on 2.8.1971 on regular basis as a Clerk. He accordingly assumed his duties as a Clerk on regular basis w.e.f.18.8.1971. The appellant retired on superannuation as Taxation Inspector. The appellant would claim that on a move made by Deputy Excise and Taxation Commissioner, Gurgaon, his past service with breaks was condoned and he was considered in service by the Department w.e.f. 15.3.1967 for all purposes. Deputy Excise and Taxation Commissioner, Faridabad had conveyed to him through an order dated 27.9.1982 that his pay was fixed allowing the increments on the basis of past service rendered by the appellant. He was also allowed to cross the first efficiency bar. From this, the appellant would plead that he was considered as a regular employee of the Department from 15.3.1967. The appellant raised a grievance that he would be entitled for seniority amongst other Clerks appointed on 15.3.1967. However, this benefit was denied to the appellant. The appellant would plead that S.S.S.Board, Haryana did not maintain any merit list and, thus, the seniority of the clerks was to be determined only on the basis of length of service as was the view conveyed earlier. The seniority of the appellant was fixed at Sr.No.60-A of the seniority list below respondent-defendant No.4, who in fact was junior to the appellant. Respondent No.4 had joined the Department as a Clerk on 26.4.1965 and had been taken as a Clerk for the first time on 12.8.1971. The appellant was also promoted as Assistant w.e.f. 8.2.1988, but was illegally denied arrears. The claim of the appellant, Regular Second Appeal No.4238 of 2006 (O&M) : 3 : however, is disputed and it is alleged that his promotion w.e.f. 8.2.1988 was wrong. The appellant would also dispute this promotion and would plead that he was entitled to the same w.e.f. 7.1.1987 and also to the arrears. On this basis, the appellant served a legal notice, but still he was not allowed the past benefits of service towards seniority to which the appellant was entitled to. In the written statement filed plea of the suit being barred on account of limitation was raised. It was also pleaded that the suit was not maintainable on the ground that the appellant had concealed true and material facts. Plea on the basis of principle of res judicata was also raised on the ground that the appellant had filed a similar suit on 24.10.1986, which was dismissed as withdrawn on 28.7.1989. It is also pointed out that the appellant had also filed a Civil Writ Petition No.10635 of 1992 before this court, which was disposed of on 6.8.1992 and thereafter the respondents had prepared the seniority list in compliance with these orders. It is also stated that appellant was given benefit of past service from 15.3.1967 to 17.8.1971 vide order dated 11.11.1982, but as per the instructions of the Government, benefit of seniority is not admissible to the appellant. Respondent No.4 had filed a separate written statement raising objections of estoppel, limitation, cause of action and plea of res judicata. He would also plead that being an appointee by the S.S.S.Board, he was senior to the appellant and has rightly been shown senior to him. As per the said respondent, appellant had never challenged the seniority from the year 1971 and, thus, the present suit would be hopelessly barred by limitation as well as by Regular Second Appeal No.4238 of 2006 (O&M) : 4 : the principle of res judicata. The suit was accordingly prosecuted on the following issues:- “1. Whether plaintiff is entitled for benefit of service rendered by him during 15.3.1967 to 17.8.1971 and is entitled to seniority on the basis of appointment w.e.f. 15.3.1967? OPP. 2. If issue No.1 is proved whether plaintiff is senior to defendant No.4 and he is entitled to pay w.e.f.7.1.1987? OPP 3. Whether the suit is barred by limitation? OPD 4. Whether the suit is barred by principles of resjudicata? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether no proper court fee has been affixed on the plaint? OPD 7. Whether the civil court has no jurisdiction to try and entertain the present suit? OPD 8. Relief. Relying upon the statement made by the appellant himself while under cross-examination to the effect that his claim for seniority has already been resolved and these facts were admitted, the question of seniority of the appellant was taken to be already settled. Not only that, the appellant had also admitted the fact that the adhoc service cannot be counted as a regular service and that he remained on adhoc service from 15.3.1967 to 17.8.1971 and that this period cannot be counted as a regular service to grant him seniority Regular Second Appeal No.4238 of 2006 (O&M) : 5 : on that basis. The appellant remained unsuccessful in his appeal and has, therefore, filed the present Regular Second Appeal. The primary issue that would arise for consideration is whether the appellant would be entitled to count the period of adhoc service rendered by him towards seniority or not. In support of his submission, the appellant has relied upon ratio of law laid down in Hanumant Singh and others Vs. State of Haryana and others, 2008(4) S.C.T.427, Municipal Corporation, Faridabad Vs. Surender Kumar Arora, 2000(3) Labour & Services Judicial Reports 232, Dr.Chandra Prakash Vs. State of U.P., 2003(1) RSJ 553 and Sports Authority of India and another Vs. Adarsh Mehta and another, 2004(4) RSJ 294. No doubt, Division Bench of this Court in Hanumant Singh's case (supra) has held that the distinction between two types of services like adhoc service and work charge service is held to be imaginary. It is also observed that the adhoc/work charge service followed by regular service has to be counted for the purpose of seniority and pension also, but has held that the same cannot be counted for grant of higher pay scale/benefit of Assured Career Progression Scheme on completion of 8/18 or 10/20 years of service. Hanumant Singh's case (supra), the order under challenge was whereby the benefit of higher pay scale and Assured Career Progression Scheme granted after completion of 8/18 years of service had been withdrawn. The court in this case had formulated following questions for answer as can be noticed from para 10 of the judgment:- Regular Second Appeal No.4238 of 2006 (O&M) : 6 : 1. Whether ad hoc service/work charged service, followed by regular service, can be counted for the purposes of grant of higher pay scale/benefit of Assured Career Progression on completion of 8/18 or 10/20 years of service? 2. Whether ad hoc service/work charged service, followed by regular service, can be counted for the purpose of grant of additional increment in the running scale on completion of 10/20 years or 8/18 years of service? 3. Whether ad hoc/work charged service, followed by regular service, is to be counted for the purpose of pension and seniority? The issue of counting adhoc/work charged service, followed by regular service, for the purpose of pension and seniority was also incidentally under consideration. Reference in this case has been made to the Full Bench decision of this court in R.K.Singla Vs. State of Haryana, 1995(4) SCT 285 (P&H). It is also noticed that while disposing of R.K.Singla's case, Full Bench of this court had held that adhoc service is countable for the purpose of seniority and other service benefits in the light of the judgment of the Hon'ble Supreme Court in Direct Recruitment case. Reference is also made to the Special Leave Petition filed by the State titled as State of Haryana Vs. Haryana Veterinary and AHTS Association and another, 2000(4) SCT 664 (SC) and the order passed therein is also noted. The Full Bench decision in R.K.Singla's case passed by Regular Second Appeal No.4238 of 2006 (O&M) : 7 : this court was accordingly set-aside. Ultimately, reference is made to the circular issued by the State of Haryana on the basis of decisions rendered in Haryana Veterinary and AHTS Association (supra) and State of Haryana Vs. Ravinder Kumar and others, (Appeal Nos.5740-5741 of 1997, which was de-linked for hearing from other appeals and decided separately. Finally, it has held in Hanumant Singh's case (supra) as under:- “Therefore, in view of the above discussion, question No.1, referred to above, stands answered against the petitioners whereas question Nos.2 and 3 stand answered in favour of the petitioners and against the respondents and it is held as under:- (a) ad hoc/work charged service followed by regular service shall not be counted for the purposes of grant of higher pay scale/benefit of Assured Career Progression on completion of 8/18 or 10/20 years of service. (b) ad hoc/work charged service followed by regular service shall be counted for the purpose of grant of additional increment in the running scale on completion of 10/20 years or 8/18 years of service. (c ) ad hoc service followed by regular service shall be counted for the purpose of pension and seniority. In Dr.Chandra Prakash's case (supra), the ratio of law as laid down by the Hon'ble Supreme Court as would emerge from Regular Second Appeal No.4238 of 2006 (O&M) : 8 : the view held in this case primarily is on the basis of rules applicable to Medical Service Rules, 1945, which govern determination of seniority in the said case. On the basis of this Rule, it has been observed where the appointment is made against a substantive vacancy, the year of appointment was determinative in fixing the seniority under the Rule and accordingly it was observed that the seniority from the date of their initial appointment could not be said to be incorrect. These observations were made in the light of the facts involved in this case and apparently no such principle of counting the adhoc service for the purpose of seniority would emerge from the case of Dr.Chandra Prakash's case (supra). In Sports Authority of India (supra), the direction to count the adhoc service appears to have been given in the background that the post was created and sanctioned while respondent was appointed. It was not found to be a mere stop-gap arrangement. The respondent therein was found to have been appointed as per the procedure and in this background was observed that order passed by the Tribunal to count the adhoc service towards seniority needed no interference. While taking this view, reliance appears to have been placed on the case of Direct Recruit Class II Engineering Officers Association and others Vs. State of Maharashtra, AIR 1990 Supreme Court 1607. In this case, the Hon'ble Supreme Court has viewed that once initial appointment is made as per the procedure and the appointee continues on the post uninterruptedly till regularisation of his service in accordance with the rules, the period of officiating service will be counted. This case again would not support general proposition of law that adhoc Regular Second Appeal No.4238 of 2006 (O&M) : 9 : service in all eventualities is required to be counted for the purpose of seniority. In the case of Municipal Corporation Faridabad (supra), the employee was held entitled to count adhoc service on the ground that he was appointed against an existing vacancy and, thus, he was held entitled to the benefit of that part of service for which he had rendered on adhoc basis. The perusal of this judgment would show that really this will not lay down any ratio of law and it has just been observed that the appointment of the plaintiff in this case was against the existing vacancy and under these circumstances, he was entitled to the benefit of this service. In contrast to this, State counsel has placed reliance on a very recent decision of the Hon'ble Supreme Court in the case of State of Punjab and Anr. Vs. Ashwani Kumar and Ors., 2008(4) SCT 269=AIR 2009 SC 186, where the Hon'ble Supreme Court has taken a clear and categorical view in regard to counting of the adhoc service for the purpose of seniority. The precise and crisp question which arose before the Supreme Court was whether the period of adhoc service rendered by an employee is to be included for calculating his seniority. The answer by the Supreme court in this case is categorical `No'. State counsel would also draw my attention to the fact that while taking this view, the Hon'ble Supreme Court in the case of Ashwani Kumar (supra) has referred to the case of Haryana Veterinary & AHTS Association (supra). Making reference to these judgments, the Hon'ble Supreme Court has observed that for calculating 8/18 years service required for giving higher pay scale and for determination of seniority only regular Regular Second Appeal No.4238 of 2006 (O&M) : 10 : service rendered by the employee is to be counted and not ad-hoc service. While dealing with the case of Haryana Veterinary & AHTS Association, the court has observed as under:- “We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Haryana v. Haryana Veterinary and AHTS Association and Anr.(supra). We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the judgment/order passed by the High Court holding that ad-hoc service is to be included in calculating the period of service for giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgment/order of the High Court under challenge is set aside.” It was held that the ratio in this case applies to the case involved therein. It was accordingly viewed that the judgment passed by the High Court holding that adhoc service is to be included in calculating the period of service for giving higher pay scale was not sustainable and has to be vacated. The appeal in the case of Ashwani Kumar (supra) was accordingly allowed and the High Court order was set-aside. Another case relied upon and referred to by the State counsel is Ashok Kumar Shrivastava and ors. Vs. Ram Lal and others, 2008(1) S.C.T.644. In this case, it is held by the Hon'ble Supreme Court that till such time as an employee is born on the cadre he cannot have any claim to seniority over others who are Regular Second Appeal No.4238 of 2006 (O&M) : 11 : already in the cadre. It is further observed that an employee can only count his seniority from the moment he becomes part of the cadre. State counsel has then referred to a Division Bench judgment of this Court in the case of Saroj Gupta Vs. The Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others, 2008(2) S.C.T.323 where a similar view has been taken by saying that it is well settled that period of adhoc service rendered by an employee de hors the selection made does not qualify for seniority. While taking this view, the Division Bench in the case of Saroj Gupta has referred to and relied upon number of judgments. In this regard, it is observed as under:- “(c ) It is settled that ad hoc service rendered by an employee de hors the selection made in accordance with the recruitment rules cannot be counted towards his seniority- Keshav Chandra Joshi and others v. Union of India and others, AIR 1991 SC 284; A.K. Bhatnagar and others v. Union of India and others, 1991(2) SCT 156 : (1991)1 SCC 544; Excise Commissioner, Karnataka and another v. Sreekanta, (1993) Suppl. 3 SCC 53; State of Gujarat v. C.G. Raiyani, 1995(2) SCT 541 : (1995)2 SCC 40; Chief of Naval Staff and another v. G. Gopalakrishna Pillai and others, 1996(2) SCT 767 : (1996)1 SCC 521; Y.H. Pawar v. State of Karnataka and another, 1996(3) SCT 380 : (1996)10 SCC 444; State of Haryana v. Amarjeet Singh, (1996) 11 SCC 725; Ram Ganesh Tripathi and others v. State Regular Second Appeal No.4238 of 2006 (O&M) : 12 : of U.P. and others, 1997(1) SCT 494 : (1997)1 SCC 621; Davinder Bathia and others v. Union of India and others, 1998(3) SCT 103 : (1998)5 SCC 262, Dr. Anuradha Bodi and others v. Municipal Corporation of Delhi and others, 1998(3) SCT 322 : (1998)5 SCC 293; Registrar General of India and another v. V. Thippa Setty and others, (1998)8 SCC 690; R.K. Trivedi and others v. Union of India and others, (1998) 9 SCC 58; Suraj Parkash Gupta and others v. State of J&K and others, 2000(3) SCT 34 : (2000)7 SCC 561; and Swapan Kumar Pal and others v. Samitabhar Charkraborty and others, 2001(2) SCT 1104 : (2001)5 SCC 581. For the reasons mentioned above, the writ petition is dismissed". Similarly in Keshav Chandra Joshi and others Vs. Union of India and others, AIR 1991 Supreme Court 284 the Hon'ble Supreme Court has held that ad hoc or fortuitous appointments on a temporary or stop-gap basis cannot be taken into account for the purpose of seniority. It is further observed that even if the appointee in such cases was subsequently qualified to hold the post on a regular basis and that to give benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16(1) of the Constitution as unequals would be treated as equals. Having considered the rival contentions, I am of the considered opinion that the latest view expressed by the Hon'ble Supreme Court has to be followed. The judgments relied upon by the Regular Second Appeal No.4238 of 2006 (O&M) : 13 : counsel for the appellant has not laid down any categoric view that adhoc service is countable towards seniority. All the judgments placed before me on behalf of the appellant have laid down criterion for counting the adhoc service with some rider or the others. On the other hand, in the case of Ashwani Kumar (supra), the Hon'ble Supreme Court has expressed a very categorical and clear view that adhoc service rendered by an employee is not to be included for the purpose of calculating the seniority. In view of the ratio of law laid down not in one but number of cases by the Hon'ble Supreme Court, I am of the considered opinion that no case for interference in the view taken by the trial court as well as by the Appellate Court is called for. Thus, the question of law arising in the Regular Second Appeal appears to be fully settled and would not call for any re-consideration on this count. The appeal is accordingly dismissed. January 22, 2010 ( RANJIT SINGH ) ramesh JUDGE