LPA 1400 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 1400 of 2010 (O&M) Date of decision 8.2.2011 State of Punjab and others ... Appellants Versus Surjit Kaur ... Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S.MANN Present: Mr. Suvir Sehgal , Addl. Advocate General for the appellants Mr. Mehar Singh, Advocate for the respondent 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The instant appeal is directed against judgment dated 19.11.2009 passed by the learned Single Judge holding that the writ petitioner- respondent is entitled to reckon adhoc service as qualifying service for the purposes of pensionary benefits. The other relief granted by the learned Single Judge is that on the completion of 8/18 years of service she would be entitled to the benefits of Assured Career Progression Scheme by counting the period of adhoc service and her salary be re-fixed accordingly. Mr.Suvir Sehgal, learned State Counsel has challenged the second relief granting ACP benefits to writ petitioner- respondent by counting her adhoc service. According to the learned counsel the benefit of ACP cannot be granted to her as her claim is not covered by the statutory rules and clarifications issued from time to time by various circulars/ LPA 1400 of 2010 2 instructions. The controversy which has been raised in the instant appeal is covered by clarification no.6 issued by the State Government on 1.9.1989 (P.3) which says that the period of eight or eighteen years is to be reckoned from the date of appointment on regular basis and the service rendered on adhoc basis is not to be counted for the purpose of grant of proficiency step- up(s). Mr. Mehar Singh, learned counsel for the writ petitioner- respondent, however, has argued that if the benefit of adhoc service is extended by making addition to qualifying service for the purposes of pension then there is no reason to deny the same for the purpose of grant of ACP grade/ proficiency step-up(s). According to the learned counsel, the learned Single Judge has committed no error of law by granting the benefit of adhoc service for the purposes of counting 8 and 18 years of service. Having heard the learned counsel, we are of the considered view that the learned Single Judge has fallen in an error of law by extending the benefit of adhoc service for making addition to regular service for the purpose of granting proficiency step-up(s). The appellant- State issued instructions dated 1.12.1988 stipulating that subject to suitability in addition to regular annual increment one additional increment on each occasion on completion of 8 and 18 years of service on or after 1.1.1986 in the form of proficiency step up shall be granted to an employee. The aforesaid benefit is to be given on adjudging the suitability of an employee for the proficiency step up and the procedure for assessing the work and conduct for the aforesaid purpose would be the same as is applicable to a case of promotion. The provisions of the aforesaid instructions are set out here under: “ PG No. 7/14/88-5pp(1)2269)/18527 dated 1st December,1988 LPA 1400 of 2010 3 On careful consideration of the recommendations of the Third Punjab Pay Commission regarding proficiency step up (PROP), the President of India is pleased to decide as follows:- 1. Subject to suitability, besides the regular annual increment one additional increment on each occasion on completion of 8 years' and 18 years' service on or after 'the appointed day' as defined in Punjab Civil Services (Revised Pay) Rules, 1988, published in Punjab Government Gazettee (Extra) on 13th September, 1988) against a post, in the form of proficiency step up(s) shall be granted to all the Punjab Government employees except the Members of the Punjab Civil Service (Executive Branch), Deputy Superintendent of Police and Members of the Punjab Forest Service Class II. 2. In adjudging the suitability for the proficiency step-up(s), the procedure for assessing the work and conduct to be satisfactory as applicable to a case of promotion, shall be followed and it shall be given only if the employee is found suitable for the same. An employee, who is not considered for a proficiency step up(s) , that is, whose assessment of work and conduct is below the requisite standard, shall not be given the additional increment(s) but his regular increment, if otherwise due, shall be released as usual,” There were some doubts raised which lead to the issuance of clarification on 1.9.1989. Item No.6 of the clarification is as under: “(PG No. 7/14/88/5FFI/16200 dated 1st September, 1989) I am directed to say that various department/ offices have LPA 1400 of 2010 4 raised certain points for clarification in respect of grant of proficiency step up, the procedure for which was laid down in the letter dated 1st December, 1988. The matter has been considered in detail in consultation with the department of Finance and the following clarifications are given on the various points. Points 1 to 5 xx xx 6. An employee was appointed on adhoc basis wherein he had put in 3 years of service. Subsequent he was appointed on regular basis. For the grant of Proficiency whether the period of 8/18 years to be taken from the date of his appointment on adhoc basis or from the date he joined on regular basis as appointed by the Subordinate Service Selection Board/ Departmental Selection Committee/ Punjab Service Commission etc. Clarification 1 to 5 xx xx 6. The period of eight or eighteen years is to be reckoned from the date of appointment on regular basis. Service rendered on adhoc basis is not to be counted for the purpose of grant of proficiency step up(s). A perusal of the aforesaid clarification would show that the period of 8 or 18 years is to be reckoned from the date of appointment on regular service and any service rendered on adhoc basis is not to be counted for the purposes of grant of proficiency step-up(s). Even otherwise, the view of Hon'ble the Supreme Court as laid down in the case of State of Haryana v. Haryana Veterinary and Ahts Association and another (2000) 8 SCC 4 is absolutely clear that it is only regular service which could be counted for the purpose of grant of ACP scale. However, the learned Single Judge has placed reliance on a judgement of Hon'ble the Supreme Court rendered in the case of State of Haryana v. Deepak Sood (Civil Appeal No. 4446 of LPA 1400 of 2010 5 2008 decided on 15.7.2008) to hold otherwise. A perusal of the judgement in Deepak Sood's case (supra) would show that in that case, there was no question of reckoning of adhoc service for the purposes of grant of ACP grade before the Court and the only question was whether past service rendered with the Municipal Council would count for grant of ACP grade when the employee has been appointed on transfer basis with the Government. Therefore, the aforesaid judgement has no application to the facts of the case in hand. As a sequel to the above discussion, the appeal with regard to second relief granted by the learned Single Judge is allowed and it is held that the writ petitioner- respondent was not entitled to count her adhoc service for the purposes of claiming ACP grade. However, we clarify that her adhoc service shall be reckoned for the purposes of grant of pensionary benefits as directed by the learned Single Judge. The appeal stands disposed of . (M.M.Kumar) Judge (T.P.S.Mann ) 8.2.2011 Judge okg.