IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 1026 of 2008. Reserved on: 23.04.2010. Decided on 06.05.2010. _____________________________________________________ Dr. Ved Parkash Lakhanpal. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. Rakesh Jaswal, Advocate. For respondents No. 1 and 2. : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For respondents No. 3 and 4 : Mr. Sandeep Sharma, Assistant Solicitor General of India. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for the adjudication of this petition are that the petitioner was selected by a duly constituted selection committee and appointed as Lecturer (Adhoc basis) on 31.10.1974 in the Jawaharlal Institute of Post-Graduate Medical Education and Research (hereinafter referred to as ‘JIPMER’ for brevity sake). He worked in this capacity till 07th August, 1976. He applied for the post of Assistant Professor (department of orthopedics) in Indira Gandhi Medical College, Shimla. He was 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.. selected by the Himachal Pradesh Public Service Commission and was appointed as Assistant Professor. He joined his duties on 11.08.1976. He retired after attaining the age of superannuation on 31.01.2001. He made several representations for counting the period, he had worked as Lecturer on adhoc basis w.e.f. 31.10.1974 till 07.08.1976 in JIPMER for the purpose of pensionary benefits. The last representation was made by him on 23.01.2007. The same was rejected on 03.12.2007. 2. The case of the petitioner, in a nut-shell, is that similarly situate persons, namely, Dr. R.L. Gupta, Dr. Satinder Kaushal and Dr. D.J. Dasgupta have been given the benefit of services they have rendered in JIPMER, Lok Naik, Jai Parkash Narain Hospital, New Delhi by counting the same towards qualifying service for the purpose of pensionary benefits. 3. The respondent (State) has not filed any reply. Respondent No. 4 alone has filed the reply. 4. Mr. Rakesh Jaswal, learned counsel for the petitioner has vehemently argued that the rejection of the case of the petitioner vide Annexure A-3, dated 03.12.2007 is illegal, arbitrary, unjust and, thus, violative of Articles 14 and 16 of the Constitution of India. He then contended that his client has been discriminated against by the respondents by not counting the period, his client has worked on adhoc basis in JIPMER w.e.f. 31.10.1974 to 07.08.1976 towards pensionary benefits. 5. Mr. Anil Jaswal, learned Deputy Advocate General, appearing on behalf of respondents No. 1 and 2 has strenuously argued that the services rendered by the petitioner on adhoc basis cannot be counted towards qualifying service for the purpose of pensionary benefits. 6. Mr. Sandeep Sharma, learned Assistant Solicitor General of India, appearing on behalf of respondents No. 3 and 4 has submitted that whether to count the previous service w.e.f. 31.10.1974 to 07.08.1976 or not, is an administrative matter to be looked into by the respondent-department. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Petitioner was appointed as a Lecturer on adhoc basis in Orthopedics Surgery after his suitability was adjudged by a duly constituted selection committee in JIPMER. He joined his duties on 31.10.1974 and worked in this capacity till 07.08.1976. He joined his duties as Assistant Professor in the department of Orthopedics in Indira Gandhi Medical College, Shimla on 11.08.1976. He superannuated on 31.01.2001. The representation made by the petitioner for counting the previous service w.e.f. 31.10.1974 to 07.08.1976 has been rejected by the respondent- State without a speaking order. It is settled law by now that any order which has civil consequences, must be reasoned and detailed. 9. Petitioner had applied for the post of Assistant Professor in Orthopedics Surgery through proper channel. His basic pay was also protected by giving him four advance increments at the time of joining by the respondent-State. The first representation was made by the petitioner in 1991 and thereafter, as per the pleadings, he has sent number of reminders. In his representation Annexure A-2, dated 23.01.2007, the petitioner has given the instances, whereby the previous services of Professor R.L. Gupta of Surgery, Professor D.J. Dasgupta and Professor S.S. Kaushal both of medicines rendered in JIPMER Pondicherry as well as Lok Naik, Jai Parkash Narain Hospital, New Delhi were counted towards the qualifying service. Petitioner has also placed on record Annexure A-4, whereby a communication has been addressed by the Principal Secretary (Health), Government of Himachal Pradesh to the Director, Medical Education on the basis of the judgment rendered by the learned Himachal Pradesh Administrative Tribunal in Dr. D.J. Dass Gupta versus State of Himachal Pradesh, O.A. No. 3810 of 2000, decided on 29.05.2007. The Principal Secretary (Health) has called upon the Director of Medical Education to do the needful as per the judgment of the Tribunal before 29.08.2007. A bare perusal of Annexure A-4 reveals that the service rendered by Dr. D.J. Dass Gupta on temporary basis in JIPMER, Pondichery from 2.9.1965 to 2.9.1968 was counted towards the qualifying service for the purpose of pensionary benefits. Similarly, in the case of Dr. Satinder Kaushal, the period of previous service rendered w.e.f. 19.06.1981 to 7.10.1981 and 10.10.1981 to 27.05.1984 in Safdarjung Hospital, New Delhi and Lok Nayak Jai Parkash Narain Hospital, New Delhi was counted towards qualifying service. The respondent (State) has also counted the temporary service rendered by Dr. R.L. Gupta as Registrar, Lok Naik, Jai Prakash Narain Hospital, New Delhi w.e.f. 28.2.1968 to 9.1.1971 towards qualifying service. 10. Mr. Rakesh Jaswal, learned counsel for the petitioner has drawn the attention of the Court to Rule-14 of the C.C.S. (Pension) Rules, 1972 (hereinafter referred to as “the Rules”) and the orders appended thereto. A bare perusal of orders appended with Rule-14, reveals that there is a provision for counting of temporary services in the State/Central Government and also for counting half of the service paid from contingencies followed by regular service. Mr. Rakesh Jaswal has also drawn the attention of the Court to Rules-15 and 17, whereby service on probation against a post followed by confirmation and service on contract basis is to be counted for qualifying service. It is evident from the contents of Anneuxures A-4, A-5 and A-6 that the previous service rendered by doctors mentioned therein in JIPMER, Lok Naik, Jai Parkash Narain Hospital, New Delhi has been counted towards the qualifying service. 11. The only point urged by Mr. Anil Jaswal, learned Deputy Advocate General to deny the similar treatment to the petitioner, is that the petitioner was appointed on adhoc basis in JIPMER. The expressions “ad hoc”, “fortuitous” and “stopgap” have been explained by their Lordships of the Hon’ble Supreme Court in Rudra Kumar Sain and others versus Union of India and others, (2000) 8 Supreme Court Cases 25. Their Lordships have held as under: 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. 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. 12. In the instant case, the petitioner had worked on adhoc basis for a period of one year and eight months after his suitability was adjudged by a duly constituted selection committee. Since the petitioner has worked for about two years, this period cannot be treated as purely “ ad hoc”, “fortuitous” and “stopgap”. The petitioner was in possession of requisite qualifications at the time he was appointed as Lecturer on adhoc basis. In these circumstances, the previous service rendered by the petitioner, was to be treated at par with purely contract appointees. A person, who is appointed on contract basis, has a limited tenure mentioned in the contract/agreement. It is true that there is difference in expressions “ ad hoc” and “temporary” in service jurisprudence, however, the ad hoc appointment is a sort of “stopgap” arrangement and in case the person works for more than one to two years, it has to be considered at par with “temporary” appointment or at least at par with purely contractual appointment. 13. The matter is required to be considered from another angle. In the case of similarly situate persons, who have rendered services on temporary basis in JIPMER, Lok Naik, Jai Parkash Narain Hospital, New Delhi, their previous service has been taken into consideration towards qualifying service. Petitioner has also worked for about two years on ad hoc basis. Dr. D.J. Dass Gupta has worked on temporary basis in JIPMER, Pondichery from 2.9.1965 to 2.9.1968. Dr. Satinder Kaushal has worked in Safdarjung Hospital, New Delhi w.e.f. 19.6.1981 to 7.10.1981 and in Lok Nayak Jai Parkash Narain Hospital, New Delhi w.e.f. 10.10.1981 to 25.05.1984 and Dr. R.L. Gupta has worked on temporary basis w.e.f. 28.2.1968 to 9.1.1971 in Lok Nayak Jai Parkash Narain Hospital, New Delhi. Accordingly, petitioner’s claim was to be considered at par with these persons whose previous service has been counted towards qualifying service. Petitioner cannot be denied the benefit of previous service rendered as Lecturer only on the basis of nomenclature of the post against which he was appointed. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-3, dated 03.12.2007 is quashed and set aside. Respondents are directed to count the period w.e.f. 31.10.1974 to 07.08.1976 towards qualifying service for the release of pensionary benefits. Needful be done within a period of eight weeks from today. No costs. (Rajiv Sharma) Judge May 06, 2010. (bhupender)