Il 1 J 56 5 c 00 Io 0 i 1 r t9r CWP Noa8604of2007 etce ed 1 INTHE HONBLE HIGH COURT OF PUNAB AND HARYZ4A a AT CHANDIGARH DATE OF DECISION 90902010 1eCWPNoe8604of2007 Dr SurindraKumarMishra andothers 11 titioners Versus 1 t Stateof Haryana andanother 0 2eCWPNoe7828of2007 0 Wati andothers D etitincrs Versus Z StateofHaryana andanother 7espondents 2 3eCWPNoe10429of2006 1 C Dr SwamjitSinghSidhu andothers 6 etitioners c25 Versus 3 StateofHaryana andanother 1V7 Z 4eCWPNo1034 of2009 Ll MRenuka Gambhirandothers 0 Petitioners Versus StateofHaryana andanother 5CWP Noe1961of2006 44 RamKumarChauha Others 1 e titioner Versus 0 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 57 f 1 1 f 0 CWP NoS604 of2007 etce 2 1 Stateof Haryanaandanother CORAM HONBLE MRJUSTICE PERMOD KOHLI P1U3S18NTt MrCL Arora Atlvoonte for petltioners MrRS Kundu AddLAG Haryana 0 MrSS Malik Advooate Based upontheidenticalandcommon questions of law andfacts Thesepetitions 1Cri The issue relatesto countingof ad hoc are disposed of by this common 0 service for thepurposeof determination of seniority in theservice onad hoc b2is The in all thesewrit petitions were initiallyengaged havingbeen by the Employment Exchangeand on beingselectedby a I Committeeof offlcersconstitutedfor the purposeof makingselection The petitioners to work on ad hocbasisas Lecturersin differentsubjects over a Z period of Slx to tenyearsandin some cases upto12years Their serviceswere lateron 2 bythe GovemmentThe are claimingsenisitybycounting their Z adhoc servicetowardstotallength of servicerenderedbythem ofone of a21 the SajjanSinghhasbeenrejected vide orderdated24 2006 C lnnexure PelO in CWP No8604of 20019The factsare beingnoticedfrom 2 Z CWPN08604of2007 The in this case were with theEmployment m Posts of lecturersin differentsubjects were advertisedfor makingad It is allegedthat the Statealso the candidates from the It is further statedthat a SelectionCommittee of DPI an IAS Of8cer a subject expertand the Deputy Director Haryana was constitutedThe Committeeinterviewedthecandidates e andthepetitioners were selectedas Lecturersin different It is statedthatthe were dulyqualifietlndeligibleas per thequalifications underthe recrultment rules The of the wasmade on ad hoc basis The 1 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 58 41 CWP No8604 of 2007 etce 3 d onrerd as orders of of some of the petitioners are placed AnnexurePel Colly In CWP No8604 of 20070From the order dated2191979 it that the three cmdidhtoswore mppolnt6d ae Leoturera Coile8eCadmlpunly on ad hoc basis in the of 70011600againstvacant postsin GovemmentColleges Narnaul and Rohtak respectively One of canbetenninatedat any time withoutassigning any rcason T candidateswere SClVlCC askedto join Itis statedthat some ofthe appointees colntinuedfrom 1976to 1988and services were throughHaryana PublicServiceCommissione thereaAertheir 1t have also placed on recordtwo orders AnnexuresPn211 The 0 andP2121From the of theseorders it appearsthat have been A 0 madeon therecommendationofHaryana Public ServiceCommissioi It is I D that the postsare but likelyto continueThe appointees were placed on I oftwo yearsin thefirst instanceThe con6rmation is subject to availability of andseniority andservicerecord Inrespectoftheseniorityfollowingconditionwas Z 11 2 C senioritywill be fixed in accordancewith the I rulesandthis will not affectthe 08 internse of the candidatesrecommendedby 1 HPSC Wm Z The service of the employees wcre laterconfinnedOne of lhe 0 Ll conflrmation lettersdated1561993 isplacedon recordas Annexure Pa3 The petitioners haveplacedon recordthe detailsof their ad hoc engagementdatesof joiningon datesof confirmationandalsodatesof awaiSdof seniorscaleandselection grade It is allegedthat while granting themseniorscaleandselectiongradetheiradhoc hasbeencounted It is furtheralleged thateven duringtheirad hoc servicediey G weregranted thebenefitof incrcmentsleaveandotherservicebene8tsas were available to theregularlyappointed Lecturers The have lnher statedthattheywere granted the benefit of the revised pay scale 111 accordancewith the of 0 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 59 3 1 e CWP No8604 of 2007 etce 4 Orents Commission and their pastservice was countedas pcr the govemment leUer dated8122000 AnnexureP41The petitioners have heavilyrelied upon UGC which interalia providefor counting of post service The guidelines relied uponby the petitioners are placcdon record as AnncxuroPa5Tho relcvmt extract ofthe sameis reproduced as underl 0 9COUNTlNG OF PAST SERVICE 1 Service without any break as a Lecturer or ln a UniversityCollegeNationalLaboratory or otherscientific eg CSIR ICAR DRDO 1 0 UGC ICSSR ICHR and as a UGC ResearchScientist shouldbe countedfor placement of lecturersin Senior ScalelSelection Gradeprovided that Z iIThepostwas in equivalent gradelscale ofpayas thepost ofa Lecturer Z for thepostw8enot lower thanthe 2 P by the UGC for the post of 4r rLecturer c8 candidates whoapplyfordirectrecruitment should 3 applythrough properchtmnels 4 6 mem Z 0v1Theconcemed Lecturers possessedthe mlnlmlUll by the UGC for as LecturerS vIThepostwas filledin accordancewiththe selectionprocedure as laid down by the 0 eeV vilThe was not ad hoc or in a Ieavevacancy oflessthanone yeardurationAd hoc serviceofmorethan oneyeardurationcan becountedprovided V 5 4 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 60 0 5 L0 CWP NoS604 of2007 etc aIThe adhocservicewas ofmorethan one year duration e brhcincumbentwas appointed on the of duly conetitutedSelectlonCommitteeand wasselectedto the postn c l The to the adhocservicewithoutany break on behalfof the thateven under the aforcsaid lt is ofsenior scaleand selectiongradeAs a matter of fact the on ad hoc basis for grant P LX 0 One of the namelySajjan Lecturermade a dated vide order dated 243006 23 2005 which has been D Itis also the case of the that some of the employees who wereworkingin privatecollegetakcnby tlle Govemmenthavebeengrmted thebene8t 1 ofadhoc renderedandreferenceismadeto one Sh RJCArora Z 2 r It is the standof the that ad hoc servicerenderedbhe detailed Z cannot be counted theseniority in terms of Rulc 11 of theHaryana c8 B ServiceRules1986 to as the Education CollegeCadrel 0 Rulesl which interalia requires continuous service forthswurpose of seniority a Z only be reckonedfrom the date of their W thusthe seniorityof the petitioners Call and not fromthe dateon ad hoc Both thesideshaverelied upon various judgments of this Court and of the Honble SupremeCourt The 1 have raisedthe questionof of theaHectedpersonsas ed are parties to the whose seniorityis likelyto be effectedif the thebenefitof adhoc serviceIt is furtherpleaded thatthe variousseniority lists from timeto timewhereinthe1titioners havebeenshownjuniorto vwlous were It is mentionedthatthe8rst seniority list was issuedshowingtheposition as 0 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 61 e 13 CWP N008604 of2007 etee 6 Thesecondseniority list showingthe position on 111993 the third existson 41987 list showingthe position on l 1997 and the 4 one showingtheposition Oll Petitioners havebeen showneven below candidatesoftfolleges wkenover by the StatOe The have alsoplacedon reeordnotificationdated9121992 whereby rules undcrprovisoto Article309ofthe Constitutionoflndia was notiOedfor Oxationof of the ad hoc Class U employeesregularizedwef 31121990 The releva 1 rulegoveming theseniority is reproduced as underl m 1 The seniorityof the ad hoc Class II employees SO 0 witheffectfromthe31 December 1990vismt vis the ClassII on the same dateon X D basis shall be determinedwith effect Oom 31 December1990Theintermseseniorijof suchadhocClass e Z Il shall be determinedin accordancewith the dateof theirjoiningtheposton adhoc basis If thedateof Z ad hoc basis by such ad hoc joiningthe postslon e 021 seniority to an youngerin age If the date of of the direct recruit and the date of VA2 Z of ad hoc employee is the same thc direct Om recruitshallbe senior According to the petitionerstheir servlces are by the Punjab 0 EducationalServiceRules 1937 lereinaRercalledthe 1937RuleslRules relevantfor thepurposeofthesepetitions are reproduced as under dme to postsin theserviceshallbemadebye Authoritiesbywhom to be made ofcolleges in the case oflectureassistants 1 bNhe PrincipalInwence CollegeGhoragali in thecase or cltheDirectorof PublicInstructionPunjabin thecase of all otherpostsl 0 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 0 62 1 4 7 CWP Noe8604of2007 etce 7 Provided that in all cases where the Director is th8 appointing authoritydivisioll inspectorscircle and principals of Govemmentcollegesmay make a temporary or ofOciating appointment other than that of a hcad of an institution if the periodofthe doesnot exceed four months in duration 6Method of recruitmentRecruitmentto theServiceshallbe lJbydirect or cb by transfer from of Govemment other than the Education Depent 4 1 In accordancewith the rules prescribed in this bchalf and when a vacancy occurs or lS aboutto occur in theService theappointing authority specified in rule4 shalldetermine themanner in which such vacancy shallbe filled 0 8Theseniority of membersin thevariousgradesof the Serviceshall be determinedby thedateof confirmationwhichfor thepurposeof thisruleshallbethedayfollowingthe 1 expityofthe periodofprobationl Providedthat if two or more membersare conOnnedin the same classof postson the samedate their seniorityshall be determinedbytheDirector whosedecisionshalibe A tlnal 1 Appendix A SubordinateEducationalServiceeMensBranch oTer T of Class rates ofjRevised Designation ofl sanctioned IPY Irates of payi Post posts for those recruited atler 31 December In L 1930 1 1Angloe 1101 1 Rs District Inspector l vemacular Iof Schools i20010m250 Assistant District Inspector of 1schoolsl Assistantj Disttict of Schools for PhysicalTraining Lecturer 1Teacher collegeso Headl Master 1Master Englishl Sciencej Commercial Teacher Agricultural rreacher Physical j Training 0 1 J Supervi 1 e e e 11 1 e Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 63 4 e CWP Noe8604of2007 etce 8 0 APPENDIX D e 4e1e O l llv le 8 7 Description oflDesignation ofpostsjClass 1A4inimum section educational AngloVemacular Lecturer or cheov MoA or MSc of a 1CMensBranchl lIl Govemmentl recognized Colleges Universitywith or t Under1937Rules thepostsof Lecturersand teachersin Colleges are specied under A andD respectively Under Rule 40f the 1937Rulesthe 1 for these postsis the Director of Public Instruction Punjabthoughthe Lr appointmentuptofour monthscan be madeby the Principalsof the Govemment 0 on temporary or ofOciating basis Rule6 themethod of recruitment Onlytwo modesare il bydirect or bl by tmnsferfrom t of Governmentother than the Elucation depanment This role er theeppointing specifled in Rulc4 to detenninetllemamer in which Z thevacancyshall be filled as it occurs Rule 8 dealswith the seniority of membersof serviceandseniority hasto be fixedbythedatcofconOnnation lZ e thisRule shallbethe dayfollowingtheexpiryoftheperiod MrlCLAroraleamedcounselfor thepetitioners submitsthatsincethepetitiotiers 021 were on ad hoc basispriorto 1986Rules their services were by1937 eaa Rules andit was onlytheDirector who was the and he had the Z and to laydown the for making It 1S Qm contendedthat the were madeby seeking of candidatesfromthe Employment Exchangesandselectionby a Commiueeof of8cers whichwas a valid procedure at therelevantime andthusthe of e thepetitioners was byadopting dueprocessof law andhencetheywe entitledto seniority fromthedateoftheir To thecontraryit is contendedon behalfofthe State that thepetitioners were aAerthe of 1986Rules andtheir servlce conditionincluding seniority has to be govemed and by 1986Rules 0 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 64 r 4 1 1 CWP Noe8604of2007 etce 9 1986Rulesrelevantfor thepurposeofpresentpetition are reproduced hereunderl Definitionee In theserules unless the context otherwiserequires XXX XXX XXX bdirect recruitment meanson made otherwisethanbypromotion fromwithintheservice or bytransferof an offlcer alreadyin theServiceof Government ofIndia or anyStateGovemment 1 0 XXX XXX Xxx 0 e fYService means theHaryana Education Collge CadrelGroupB Service tI XXX Xxx XXX I 1 I The seniorityinter se of the Z membersof the Service shall detenninedby the of continuousservic8on any post in the 2 0 servicel I Provided hat in case of membersappointedby c8 direct recruitm6ntthe orderof merit determinedby the Comnlission O otherrecruitingauthority m Z not bedisturbedin flxingtheseniorityl Provided furtherthat in the case of two or more membersappointed on the same date their seniority shallbedetenninedas followsle 4WaeW 6alamemberappointed bydirectrecruitmentshallbe 0 senior to a memberappointed by promotion or by transfer O0inthe case of membersappointed by transfer from different cadres their seniorityshall be Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 65 L1 1 1 0 CWP N08604 of2007 etce 10 determinedaccording to pay prcference beinggiven to a memberwho was drawing a higherrate of pay in his previous andif the ratesof pay drawnare alsothe same thenbythelengthof thir service in the and if the lengthof suchserviceisalsothesame the oldermembershall bescniorto the youngermember 21On of the men and women 101 branchesthe seniority of themembersholdingthe 0 0 same class of postsand in the same or identical C4 scalesof pay shall be determinedby thelengthof I theircontinuouservicein thepos I Provided that their inter se seniorityin their Z brancls shallnot bedisturbedl 1 2 Providedfurtherthatin case two or more menibers 4 havingthe same lengthor continuousserviceIthe old membershall be senior to a youngermember 021 and if theirage is alsothe same the memberwho wasdrawinghigherrate be seniorto the mm Z tnemberwho was drawing lesserpay m relieduponbytllepctiti9ners are noticedhereleaRer In thecase of theDirect Recruit ClassII Engineering Omcers Association and others v StateofMaharashtra and others AIR 1990Supreme Court 1607 the Honble Supreme Courthasobservedas underl 44 To sum up we holdthatl Al Once 811 incumbent is to a post to rule his seniority hasto be counted from thedateofhis andnot according 0 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 66 i we CWP Noe8604 of2007 etce 11 tothedateofhis confirmationeee 91 In the case of SportsAuthorityof India and anothcr vse Adarsh Mehta and another 200441SCT DBl 122 a DivisionBenchof thisCourtupheld thejudgment of thetrial cournd the CentralAdministrativeTribunal ad hoc periodof servicerenderedbytheemployee was directed10 becountedtowardstheseniorityIt has beenobservedthatthe was as pel procedure and aer due creationof the postIt hasbeenfurtherobserved thattheemployer 6ydifferentordershasUeatedthe ad hocemployee as partoftheir service m ofRudra Kumar Sain and othersvse Union ofIndia and others 2000IlRSJ SC l a 0 Constitution Bench of Honble Court while theclaim of seniority of the promoted Judicial Omcerson ad hoc basistowardstheseniority as I 9 direct recruitsobservedas underl Z 201n the Service a personwho e 0 Z possesses the requisite qualification for 2 being to a particular postandthenhe is 4 appointed withthe approval and consultationofthe authority andcontinuesin thepostfor a 021 fairly longperio thensuch held to be stopmgap or fortuitousor purelyad hoc e 2 In thisview of the matter the and basis tlm on which the ofthe promotees in the DelhiHigher JudicialServicein the casein hand was held by the High Court to be fortuitouslad 0 are whollyerroneous and therefore 4eeee exclusionof those to have their continuousIengthof servlce for seniority1S erroneou Further referenceis madeto a Division Benclljudgment of this Court pass Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 67 0 r CWP N008604of2007 etce 12 CWP Noe2409of 2008 oVijay Singhand others VSe State of Haryanaand others decided on 1812e20080ln this case a directionhasbeenissuedto Ueat ad hoc service towardsthe seniorityUnder identical circumstances Honble Surpeme Courtupheldthec1aim ofLecturersin theEducation for seniorityappointed under1937Rules noticedheremineabove by similar methodas the petitioners in Writ PetitionCivill N0368 of 1987 DreGagan Inder Kaur 8 Orsevse Union Territoryof 4 OrseDecidedon 171019951 The relevantobswations are notedas 1 r under1 0 5In view of thefactsmentionedabove it appears tS that the of the and other Lecturers in theUnion Territory of Chandigarh who I on ad hoc basisduringthe perid were Z 1977till thepublication of the 1990rules though described as an ad hoc 1S reallyan C appointment on regularbasis made in accordance withthe thatwas required to be followed c8 for making a regular underthePunjab Rulesof 1937which were in force at thattime The D Z said have beendescribedas beingad L3m hoc in nature on the erroneous that consultationwith the UPSC was necessary 1977for makingregular on theposL Sincethe PunjabRules of 1937 had continuedin ee forceconsultationwith UPSC was not required for thepostofLecturerswhich continuedto be a Class III post till the publication of the 1990 Rules on 0 5 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 68 1 1 be r CWP No8604 of2007 etco 13 To the contrary haveplacedreliance upon the case of Excise Commisioner Karnataka 8i Anre we Sreekanta Cl 199301SLR 339 19951 e PLR 151and Stateof Punjaband Anrevs Ashwani Kumar and Orse 200911RSJ 452 It is alsopleadedthat Rule 20 of 1937Rulesrelating to of lecmrers standsrepealedThe petitioners cannot claim the beneStof under 1937 Rules I haveconsidered contentions counselfor partiesThe mot j iswhether initial ofthe petitioners was in accordancewith rulesor lt was a fortuitous disentitling them the bene6t of ad hoc service It is admitted case of the parties that all the were though on ad hoc basisbut priorto cominginto force of 1986Rules The postsof Lecs in the Colleges are specified under AppendixA and D respectively Teir are e prescribed lll B Under Rule 4 of the 1937 Rules the Director Public InsUuctionsPunjabis appointing authorityEven thoughthe names of the petitioners were bythe Employment Exchangehowever their selectionwas madeby a dulyconstitutedCommitteewhich fact is not disputed in thereplyRule 6 providestwo modesof recruitmentie by Direct recruit or by transfer The havebn i by direct recruitmentNo quotais flxed for direct recruitmentor otherwise Rule6 81rtherempowerstheappointing authority to revdeterminethe manner in which thevacancyis to be filled as and when it occurs The competentauthority Olled up vacancies by direct recruitment It is also mentionedin the writ petitionthat besides 1 by the Employment Exchanges a publicadvertisetentwas also issued 7 whichfact is also not disputed in therepJyOledby The ofthe r in this manner cannot be saidto beltrary to rules or against themandateof L 1 1 Articles 14 and 16 of theConstitutionof India Under 1986Rules the is to be madeon the recommendationsof the Commis1 which was not the 1 1 1 under1937Rules 1937Rulesdealswith seniority whichhasto be fixedbythe dateof con8rmationIt is pertinent to note thateven whenthepetitioners were regularized their 0 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 69 0 8 r CWP Noe8604of2007 etce 14 cases were dulyconsideredbytheHaryana PublicServlce Commisslonas is evldentfr9p 1 the ordersCexures P211 and Pe212Even underRule 11 ofthe 1986 Rules dealing with seniorityit is provided that theseniority shallbe determinedbythe of continuoussenlice on any postin tlheservice There is no of a serviceunder this rule even The petitioners were appointed against thesanctioned through a dulyconstitutedselectionCommitteeTheyhavebeencontinuing on the bome on thecadreof service Thcir cannot be Idto be fonuitousin nature thefactthat thesame havebeentennedas adhoce As a mauer 0 offact ratioofthejudgment ofHonbleSupreme Court in the case of03r0Gagan Inder 0 Kaur 8i Orssupral is on all fours These D hoc period of servicerenderedby thepetitioners towardsthe seniorityThe petitioners shallbeentitledto all the beneOts Z Copyofthis orderbeplaced on recordofeachconcernedfile VAP 6 00 G I PERMOD KOHLII oS JUDGE Pronouncedon 9 e9e2010 MFK m7 Z L NOTElWhetherto be to reporter or notYES ll 0P f 0 1 Singh Gagan Preet 2014.03.25 13:58 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document