CWP No.1702 of 1994 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 05.01.2011 1. CWP No.1702 of 1994 Sukhpal Singh Hundal and others ... Pet itioners Versus State of Punjab and others ... Res pondents 2.CWP No.784 of 1994 Satwant Singh and another .. Pet itioners Versus State of Punjab and another ... Res pondents 3. CWP No.2607 of 1994 Hardeep Singh and others ... Pet itioners Versus State of Punjab and others ... Res pondents 4.CWP No.2341 of 1995 Joga Singh Aujla and others ... Pet itioners Versus State of Punjab and others ... Res pondents 5. CWP No.4490 of 1994 Jagdish Mitter and others ... Pet itioners Versus State of Punjab and others ... Res pondents 6. CWP No.16925 of 2003 Lachhman Singh and others ... Pet itioners CWP No.1702 of 1994 2 Versus State of Punjab ... Res pondent 7. CWP No.18063 of 2004 Sat Parkash Sharma and others ... Pet itioners Versus State of Punjab and others ... Res pondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Gurnam Singh, Advocate; Mr.RS Ri ar, Sen ior Advocate, with Mr.DPS Kah lon, Advocate; Mr.DS Pat walia, Advocate; Mr.KS Dadwal, Advocate; Mr. MK Tewari, Advocate; Mr.RN Rai na, Advocate, fo r the petitioners. Mr.PC Go yal, Ad ditional Advocate General, Punjab, for the State of Punjab. Mr.Nam it Kumar, Advocate,for private respondents in CWP No.18063 of 2004. PERMOD KOHLI, J. Dispute in these writ petitions relate to inter se seniority of the Members of the Class-III Service in the State of Punjab. The petitioners and the private respondents were working as Assistants/Senior Assistants at the time of filing of these writ petitions. The petitioners are aggrieved of the order dated 12.01.1994 (Annexure P-7) passed by the Department of General Administration, Secretariat Establishment in the State of Punjab, proposing to grant seniority to the writ petitioners in CWP No.2780 of 1980-Malook Singh and others by counting their ad hoc service towards total length of service; and the Seniority list dated 14.01.1994, (Annexure P-8) issued by the Government re-fixing the seniority by granting benefit of ad hoc service to the employees. CWP No.1702 of 1994 3 It may be useful to briefly notice the circumstances leading to the filing of these writ petitions. The facts are being extracted from CWP No.1702 of 1994. The petitioners in this writ petition were initially recruited as Clerks in the year 1973 by direct recruitment. They were promoted as Senior Clerks and Assistants in the year 1980. All of them were designated as Senior Assistants in the year 1989. Their names were included in the seniority list as stood on 31.12.1978 and later seniority list as stood on 14.1.1994. 73 Clerks, who were working in the office of the Punjab Civil Secretariat, challenged the seniority position as stood on 31.12.1978 by filing CWP No.2780 of 1980, against 27 Assistants/Senior Assistants impleaded as respondent Nos. 2 to 28 in the said writ petition. The petitioners herein were not parties to the said writ petition. 73 writ petitioners, in fact, claimed benefits of ad hoc service rendered by them towards their seniority as against the regularly recruited Clerks appointed later than the ad hoc engagement of those writ petitioners. Learned Single Judge of this Court allowed that writ petition vide judgment dated 06.12.1991 holding that on regularisation of the employees, their regular appointment would relate back to their initial engagement on ad hoc basis. The State of Punjab challenged the judgment of the learned Single Judge dated 06.12.1991 in LPA No.555 of 1992. A Division Bench of this Court while upholding the directions of the learned Single Judge to grant seniority to the writ petitioners over and above directly recruited persons, did not agree with the observations of the learned Single Judge that upon regularisation the services would relate back to the date of initial appointment. The relevant observations in this regards are noticed CWP No.1702 of 1994 4 hereunder:- “ The State of Punjab and the private respondents, however, sought to press in aid the instructions of the State Government of March 15, 1962, Annexure R-1, and it was sought to be contended on the basis thereof that the crucial date for determining inter se seniority must be taken to be the date on which they were recommended for appointment by the Subordinate Services Selection Board. This is indeed a wholly untenable contention. It is settled law that executive instructions cannot over-ride the statutory rule or to put in another way, they must give way to the statutory rule. Even otherwise, a plain reading of these instructions would reveal that no such situation was envisaged therein like the one arising in the present case, namely, determination of the inter se seniority of ad hoc employees whose services had been regularised and persons directly recruited after the date of the regularisation of the services or such employees. In our view, therefore, the learned Single Judge rightly held the petitioners to be senior to the private respondents. We, however, express no opinion on the other aspect adverted to by the learned Single Judge, CWP No.1702 of 1994 5 that upon regularisation, the services of the petitioners, for purpose of a seniority would relate back to the date of their initial appointment. In the circumstances, we prefer to leave this question open to be dealt with in an appropriate case and therefore, the view of the learned Single Judge on this issue be not treated as a binding precedent.” The State of Punjab preferred appeal before Hon'ble the Supreme Court being SLP No.7513 of 1993 against the judgment dated 04.01.1993 passed in LPA No.555 of 1992. However, the said SLP was dismissed in limine on 16.07.1993. Since the Hon'ble Division Bench did not disturb the directions for redetermination of seniority, a Contempt Petition seems to have been filed by the writ petitioners therein for implementation of the judgment. With a view to implement the judgment, order dated 12.01.1994 (Annexure P-7) was passed proposing to redetermine the seniority in implementation of the judgment of learned Single Judge of this Court rendered in CWP No.2780 of 1980 and partly affirmed in L.P.A. No.555 of 1992. Objections were invited from the affected employees within 15 days. However, without waiting for the expiry of 15 days period for filing the objections, the State of Punjab issued the final seniority list vide its order dated 14.01.1994 and the petitioners were relegated to a position below various persons by granting the benefit of ad hoc service to the employees who were ordered to be regularised. These ad hoc employees were appointed as temporary Clerks for a period of six months vide memo dated 06.01.1976 (Annexure P-9) and were later regularised vide order dated 03.05.1977 CWP No.1702 of 1994 6 (Annexure P-10) with effect from 01.04.1977. At the time of regularisation of these employees, their service conditions were regulated by the Government Notification dated 01.07.1952 whereby the Punjab Civil Secretariat (State Service Class-III) Rules, 1952 (hereinafter referred to as the “1952 rules”), were notified. Rule 9 of 1952 rules deal with the inter se seniority of the Members of the Service. The relevant extract of Rule 9 of the 1952 rules, is reproduced hereunder:- “ Rule 9. The seniority inter se of members of the service holding the same class of post shall be determined by the date of their substantive appointment to such post.” Rule 9 of 1952 rules was, however, amended on 10.08.1976. The amended rule, thus, reads as under:- “ 9. The seniority inter-se of members of the service in each cadres shall be determined by the length of continuous service on a post in that cadre of the service: “Provided that in the case of members recruited by direct appointment who join within the period specified in the order of appointment or within such period as may from time to time be extended by the appointing authority subject to a maximum of four months from the date of order of appointment, the order of merit determined by the recruiting authority shall not be disturbed; Provided further that in case of a candidate is CWP No.1702 of 1994 7 permitted to join the service after the expiry of the said period of four months in consultation with the recruiting authority, his seniority shall be determined from the date he joins the service; Provided further that in case any candidate of the next selection has joined the service before the candidate referred to in the preceding proviso joins, the candidate so referred shall be placed below all the candidates of the next selection who join within the time specified in the first proviso”, and Provided further that if one, two or more members are appointed on the same date, their seniority shall be determined as follows: (a) a member recruited by direct appointment shall be senior to a member recruited otherwise; (b) a member appointed by promotion shall be senior to a member appointed by transfer; ( c) in the case of members appointed by promotion or transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and (d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being CWP No.1702 of 1994 8 given to member who was drawing higher rate of pay in his previous appointment; and if the rates of pay drawn are also the same then by their length of service in those appointments; and if the length of such service is also the same, an older member shall be senior to a younger member. Note: (1) This rule shall not apply to members appointed on purely provisional basis pending their passing the qualifying test.” The petitioners have accordingly filed this petition challenging the orders dated 12.01.1994 and 14.01.1994, Annexure P-7 and P-8, respectively, whereby the seniority of the petitioners has been disturbed. The State of Punjab in its reply has raised the only plea of implementation of the judgment rendered in CWP No.2780 of 1980 whereunder the benefit of ad hoc service has been given to the private respondents, though it is admitted that under the 1952 rules seniority was to be determined from the date of their substantive appointment. Identical relief is sought in CWP Nos.784, 2607 of 1994 and 2341 of 1995. In CWP Nos.16925 of 2003 and 4490 of 1994, the writ petitioners were engaged on ad hoc basis during the years 1972 to 1975. They were also regularised vide order dated 03.11.1977 with effect from 01.04.1977 along with writ petitioners in CWP No.2780 of 1980-Malook Singh and others. The petitioners in these writ petitions were engaged on ad hoc basis prior to the writ petitioners in Malook Singh's case. They are CWP No.1702 of 1994 9 also seeking the benefit of their ad hoc service towards seniority on the analogy of Malook Singh's case (supra). The factum of their ad hoc engagement is not disputed in the reply filed by the State. The petitioners in CWP No.18063 of 2004 were also engaged on ad hoc/temporary basis as Clerks between the years 1972 to 1976, their names being sponsored by the different employment exchanges and on being selected by the Departmental Selection Committees consisting of three members namely, (i) Under Secretary to Government (Secretariat Administration), (ii) the Under Secretary (General), Punjab Civil Secretariat, Chandigarh and (iii) a Senior Superintendent of the Punjab Civil Secretariat. Their selection was for a period of six months or till the regular selection is made by the Punjab Subordinate Services Selection Board. It is admitted position that when these petitioners were engaged, Punjab Subordinate Services Selection Board was abolished by the Punjab Government vide its notification dated 12.08.1972 and was re-constituted vide notification dated 15.10.1974. After abolition of the Punjab Subordinate Services Selection Board, the Government had issued circular dated 06.09.1971 and the work of recruitment was entrusted to the Departmental Selection Committee. On reconstitution of the Punjab Subordinate Services Selection Board, advertisement was issued to fill up the posts of Clerks occupied by the petitioners. The writ petitioners in this petition as also the the private respondent Nos.2, 3, 10, 11, 12, 13 and 23 applied for the posts. Selection was made on the basis of type test and interview. All the petitioners came to be selected and recommended for regular appointment, whereas the above named private respondents could not be selected. It is stated that the private respondents including the CWP No.1702 of 1994 10 persons named hereinabove who were holding the posts of Clerks on ad hoc/temporary basis, came to be regularised under the Government policy/circular dated 03.05.1977 with effect from 01.04.1977. The private respondents filed CWP No.2780 of 1980. Only 27 respondents were arrayed in the said writ petition. As noticed hereinabove, CWP No.2780 of 1980 was allowed. All the writ petitioners are respondents in this case. The writ petitioners in this petition are claiming seniority over and above the private respondents on the basis of their length of service, both as ad hoc employees and as regular employees. A gradation list of the Clerks was issued on 31.12.1983. All the private respondents were shown junior to the petitioners. The petitioners in this writ petition were shown in the seniority list between serial Nos.120 to 219, whereas the private respondents were shown in the seniority list between serial Nos.229 to 323. However, by virtue of the order dated 14.01.1994, the petitioners have been rendered junior to the private respondents (writ petitioners in CWP No.2780 of 1980) by granting them benefit of deemed date of appointment. It is also relevant to note that the private respondents named hereinabove, failed to secure regular appointment in the selection process conducted by the Punjab Subordinate Services Selection Board but were also granted benefit of seniority on regularisation and placed over and above the present writ petitioners. In the meantime, Mohinder Kaur and similarly situated other persons who were also engaged on ad hoc basis as stop-gap arrangement between the period 24.06.1970 to 17.12.1971, joined the office of the Punjab Civil Secretariat as Clerks and whose services were regularised with effect from 01.01.1973, were denied benefit of ad hoc service towards CWP No.1702 of 1994 11 seniority. They filed CWP No.16488 of 1995. Respondent Didar Singh and Sulakshana Kapoor and similarly situated other persons who were granted the benefit of ad hoc service towards seniority, were also arrayed as respondents in the writ petition filed by Mohinder Kaur and others. This writ petition was allowed by a learned Single Judge of this Court vide judgment dated 24.12.1997 on the basis of Malook Singh's case. Aggrieved of the judgment dated 24.12.1997, one Mehar Chand, preferred Letters Patent Appeal No.133 of 1998, which was allowed vide judgment dated 08.01.1999, with the following observations:- “In view of the various judgments referred to above, especially the judgment in Gurmail Singh's case, where Malook Singh's case was over ruled and further fact that in the Letters Patent Judgment in Malook Singh's case it was specifically observed that the same would not be cited as a precedent for the purpose as to whether ad hoc service is reckonable for purpose of seniority or not, we are of the view that the concession given by the State counsel on the basis of which the impugned judgment was given by the learned Single Judge was not correct in law. For the foregoing reasons, we allow these appeals and set aside the judgment of the learned Single Judge and also the show cause notices dated 20th April, 1998, issued to the appellants. However, we make no order as to costs. CWP No.1702 of 1994 12 Sd/- RS Mongia, Judge January 08,1999 Sd/- VS Aggarwal, Judge” From the above observations, it appears that judgment in Malook Singh's case was later over ruled in Gurmail Singh's case. Against the aforesaid judgment of the Division Bench, SLP No.8534-35 of 1999 was filed by Mohinder Kaur and others (writ petitioners therein). The SLP was dismissed in limine on 19.07.1999. It is the case of the petitioners that despite the judgment dated 08.01.1999 in LPA No.133 of 1998, the seniority list issued pursuant to Malook Singh's case has not been revised and the private respondents have been promoted to the Posts of Superintendent Grade-II and Superintendent Grade-I on the basis of their seniority determined vide the impugned order dated 14.01.1994. The petitioners in this petition have also challenged the promotion of private respondents. From the above resume of factual background noticed from various writ petitions, following undisputed facts emerge :- 1. Judgment in Malook Singh’s case in CWP No.2780 of 1980 has attained finality in respect to inter-se seniority of the writ petitioners and the respondents therein. 2. The petitioners in CWP Nos.1702, 784, 2607 of 1994 and 2341 of 1995 were not parties in Malook Singh’s case, but the respondents in these writ petitions are the beneficiaries of Mallok Singh’s case who were writ petitioners in that writ petition in whose favour the impugned orders dated 12.01.1994 and 14.01.1994 (Annexures P-7 and P-8 respectively) have been passed giving them seniority over and above the petitioners in these writ petitions. CWP No.1702 of 1994 13 3. The writ petitioners in CWP No.16925 of 2003 and CWP No.4490 of 1994 are seeking benefit of seniority on the basis of their ad hoc service on the analogy of Malook Singh’s case. 4. In CWP No.18063 of 2004, the writ petitioners were the respondents in CWP No.2780 of 1980 (Malook Singh’s case). 5. In CWP No.16488 of 1995 filed by Mohinder Kaur and others, judgment in Malook Singh case was followed by learned Single Judge but in LPA No.133 of 1998, decided on 08.01.1999, the judgment of writ Court was set aside refusing to follow Malook Singh’s case having been over ruled in Gurmail Singh's case. The LPA judgment has been upheld in the Special Leave Petition in Mohinder Kaur’s case. A Full Bench of this Court in the case of Chambel Singh Vs. State of Haryana and another, 1995 (1)Recent Services Judgments, 382, while considering different opinions rendered by two different Division Benches of this Court in regard to grant of seniority by counting ad hoc service resolved the issued and held as under:- “17. Division Bench in Sohan Lal’s case (supra) after examining Rule 11 of the Haryana Food and Supplies Department Sub Offices (Group C) Services Rules, 1982 and in the light of the decision of the apex Court in Professor S.K. Sharma’s case (supra) and in Masood Akhtar Khan’s case (supra) came to the conclusion that the service rendered on ad hoc basis is not to be counted towards seniority. However, the Bench left the question open whether ad hoc service will count for leave, increment and pension. This view is in conformity with CWP No.1702 of 1994 14 the decision of the apex Court noticed above and is thus approved. “18. In view of what has been discussed above, we are of the view that ad hoc service per se cannot be counted to determine appointee’s seniority in the cadre.” A Division Bench of this Court in CWP No.9200 of 1993 (Gurmail Singh and others Vs. The State of Punjab and others), decided on 21.07.1994, held Malook Singh’s case not a correct law relying upon the judgment of the apex Court in the case of Direct Recruit Class II Engineering Officers’ Association's case, (AIR 1990, Supreme Court, 1607). Relevant observations of Court are:- “It is, thus, clear that the judgment in Malook Singh's case (supra) is based mainly on the Government's stand that regularisation of service of the ad hoc appointees shall be with retrospective effect and their seniority be determined vis-a-vis regularly appointed persons on that post. In addition, the learned Judge relied n the Supreme Court decision in Direct Recruit Class II Engineering Officers Association's case (supra). In our considered opinion after the subsequent decisions in Masood Akhtar Khan's case (supra), Dr. M.A. Haque's case (supra), Keshav Chandra Joshi's case (supra) and Aghore Nath's case (supra), the principle that the ad hoc appointees are entitled to seniority on the basis of total length of service cannot be treated as correct and to this extent the judgment in Malook Singh's case (supra) CWP No.1702 of 1994 15 cannot be regarded as correct law. On the basis of the above discussion, we hold that a person appointed on ad hoc basis or a person appointed without following the procedure prescribed in the Rules is not entitled to the benefit of total length of service for the purpose of seniority even though he is subsequently regularised in service on the basis of a policy decision taken by the Government or on the basis of the amendment made in the rules. We further hold that even where an appointment on ad hoc basis is made after calling names from the employment exchange such ad hoc appointee will not be entitled to seniority over an employee recruited in accordance with the rules even if the service of ad hoc appointee is subsequently regularised.” Later, a Division Bench of this Court in LPA No.133 of 1998 (Mehar Chand Vs. State of Punjab) decided on 08.01.1999, reported as 1999 (3) S.C.T., 162, followed the judgment rendered in Gurmail Singh's case, set aside the order of learned Single Judge in CWP No.16488 of 1995 filed by Mohinder Kaur's and others and refused to grant benefit of seniority by counting ad hoc service on regular basis. In The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others, AIR 1990, Supreme Court, 1607, it has been held :- “44. (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from CWP No.1702 of 1994 16 the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.” In Davinder Bathla and others Vs. Union of India and others, 1998 (3), RSJ, 161, it is held as follows:- “6. ...............The post of Enquiry-cum-Reservation Clerk being a selection post, the persons like the appellants who were posted against those posts without going through the process of selection on ad hoc basis do not have a right to be in the cadre until and unless they are duly regularised after going through a process of selection. In the case in hand, the process of selection was made only in the year 1982 and the appellants have been absorbed in the cadres of Enquiry-cum- Reservation Clerks after being duly selected. In this view of the matter, the continuance on ad hoc basis from 1978 to 1982 cannot be counted for the purpose of their seniority in the cadre of Enquiry-cum-Reservation Clerk nor can they be held senior to the women candidates who were directly recruited as Enquiry-cum-Reservation Clerks under the changed policy by undergoing a process of selection...........................” In Keshav Chandra Joshi and others etc. Vs. Union of India and others, CWP No.1702 of 1994 17 AIR 1991, Supreme Court, 284, it has been held as under:- “25. …………..the appointment to a post must be according to rules and not by way of ad hoc or stop-gap arrangement made due to administrative exigencies. If the initial appointment thus made was de hors the rules, the entire length of such service cannot be counted for seniority. In other words the appointee would become a member of the service in the substantive capacity from the date of his appointment only if the appointment was made according to rules and seniority would be counted only from that date………..” “33. …………Accordingly we have no hesitation to hold that the promotees have admittedly been appointed on