CWP No. 17034 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 17034 of 2009 Date of decision: August 8, 2011 Chandigarh Administration ...Petitioner Versus Dr. Jagdish Chander and another ...Respondents CORAM:- HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. HS Sethi, Advocate, for the petitioner. Mr. RS Bains, Advocate, for the respondent. 1. To be referred to the Reporter or not ? 2. Whether the judgment should be reported in the Digest ? GURDEV SINGH, J. This writ petition has been filed by Chandigarh Administration for setting aside order dated 19.3.2009 passed by the Central Administrative Tribunal, Chandigarh Bench-respondent No.2 allowing the original application of Dr. Jagdish Chander-respondent No.1, directing the Union of India, Secretary, Department of Medical Education and Research, Chandigarh Administration, Union Territory, Government College, Chandigarh and Union Public Service Commission (UPSC), who were impleaded as respondents in that original application, to count the adhoc CWP No. 17034 of 2009 2 service rendered by the respondent No.1 from 4.11.1992 to 11.3.1998 while passing appropriate order in that regard. The respondent, who was MBBS and MD (Microbiology) joined the Department of Microbiology at PGI, Chandigarh, as senior resident on 19.3.1987. After completing his tenure post on 18.3.1990, he worked as Assistant Professor in that Institute from 14.2.1991 to 3.11.1992. A new Medical College was started by the Chandigarh Administration and for recruitment of senior faculty members Group-A posts, posts of Professors and Reader/Assistant Professors in Microbiology were notified, vide advertisement dated 22.7.1992, which was duly published in the newspapers 'The Tribune' and 'Indian Express' on 16.8.1992. The respondent was eligible for the post of Reader/Assistant Professor and, as such, applied for the same. A High Powered Selection Committee under the Chairmanship of Shri Baleshwar Rai, IAS, the then Advisor to the Administrator, Union Territory, Chandigarh, took interview of the candidates and the respondent was selected and subsequently appointed as Assistant Professor (Microbiology) on adhoc basis, vide appointment letter dated 22.10.1992. He joined that post on 4.11.1992 and his appointment was termed as temporary on adhoc basis, though it was filled up against a permanently created post till the same was to be filled up on regular basis through UPSC. Subsequently, all the Assistant Professors working in this Medical College were designated as Readers in order to maintain uniformity of three-tier ranking in the medical institute as per Panjab University, Chandigarh, letter dated 12.8.1993. The post of Reader in Microbiology was advertised for the first time on 22.4.1995, to be filled up through UPSC on regular basis. The interview was held by UPSC on 19.9.1995 and the CWP No. 17034 of 2009 3 respondent was one of the selected candidates, who were recommended by the Commission on 5.3.1998. After that recommendation, the order of appointment as Reader on regular basis was issued, vide letter dated 12.3.1998. It was pleaded by the respondent in his original application before the Tribunal that after his regular appointment, he made a detailed representation dated 5.5.1998 for counting his adhoc service, which was followed by regular appointment with continuity without any break. After no response was received to that representation, he sent a reminder dated 7.7.1998. In response to the representations made by him, it was conveyed to him that benefit of past service would be granted after confirmation of his service. He was the founder faculty member of the Department of Microbiology, which came into existence only after he joined this Department on 4.11.1992. He also officiated as Head of this Department from 17.10.1994 to 22.5.1996. He has unblemished service record during his 5-1/2 years of service. The initial appointment was extended periodically from time to time without any break and he was granted the annual increments also. As part of service benefit, deduction of GPF was made from his salary, which was admissible only to the regular employees. Even in the recruitment rules, which were notified by the petitioner under proviso to Article 309 of the Constitution, the mode of recruitment has been given as “Promotion/Deputation (including short term contract), failing which by Director Recruitment”. That shows that first preference is to go in favour of promotion and the same is applicable to him. His initial appointment was made after following the due procedure, in accordance with the notified rules, by giving advertisement in the newspapers, calling CWP No. 17034 of 2009 4 all the eligible persons for the post of Assistant Professor (Microbiology). He successfully completed his probation and he was duly confirmed vide order dated 14.1.2006. He prayed in that application that appropriate direction be issued to the respondents for counting his adhoc service of 5- 1/2 years from 4.11.1992 to 11.3.1998 as Assistant Professor/Reader, alongwith all consequential benefit. In the written statement filed by the petitioner, factual position was admitted. It was pleaded that adhoc service of the respondent cannot be counted as his service was not regularized and he was freshly appointed by way of direct recruitment by the competent authority. It was mentioned in his appointment letter of the year 1992 that the appointment is being given to him purely on temporary basis and would not confer any right upon him and that he would continue to hold the post till selected/appointed person through UPSC joins. His representations were rightly rejected. His appointment was only as a stop gap arrangement till the time appointment on regular basis was made through UPSC. His appointment through UPSC was a fresh appointment. It was not by way of promotion. We have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that in view of the terms of initial appointment, the service rendered by the respondent on adhoc basis cannot be counted for the purpose of promotion or seniority. It was clearly mentioned in his appointment letter that the appointment was purely temporary on adhoc basis for a period of six months or till the post is filled up on regular basis through UPSC. The Tribunal ignored the terms of that initial appointment, while returning a finding in favour of the respondent. It was not a case of regularization of the CWP No. 17034 of 2009 5 service of the respondent but was a case of fresh appointment. Therefore, adhoc service rendered by him cannot be counted towards regular service. In support of his contentions, he relied on the following judgments:- (1) Surinder Singh Sekhon versus State of Punjab 1993 (1) SCT 412; (2) Rudra Kumar Sain and others versus Union of India and others 2000 (8) SCC 25; (3) R.K. Mobisana Singh versus Kh. Eemba Singh and others 2008 (1) SCT 549; and (4) State of Punjab and another versus Ashwani Kumar and others 2008 (4) SCT 269. On the other hand, it has been submitted by the learned counsel for the respondent that the Medical College was started by the Union Territory, Chandigarh Administration in the year 1992 and for running the same, the faculty members were required. There were no rules regarding recruitment and the procedure followed for making the recruitment can be termed as due procedure, as posts were duly advertised in the newspapers for appointment of the eligible candidates and the recommendation and the selection were made by the High Powered Selection Committee, headed by the Advisor to the Administrator of the Union Territory, Chandigarh. The respondent was selected after due procedure was followed. It cannot be termed as adhoc or temporary appointment. After he was appointed on regular basis by the UPSC, his initial appointment stood regularized and, as such, service rendered by him on adhoc basis is to be counted for the purposes of promotion and seniority. It is well settled law that on regularization of service of an employee he is entitled to the counting of the CWP No. 17034 of 2009 6 service rendered on adhoc basis towards regular service. In support of his submissions, he cited the following judgments. (1) Direct Recruit Class II Engineering Officers Association versus State of Maharashtra AIR 1990 SC 1607; (2) State of West Bengal versus Aghore Nath Dey 1993 SCC (3) 371; (3) Rudra Kumar Sain Versus Union of India 2000 AIR (SC) 2808; (4) S.N. Dhingra versus Union of India 2001 AIR (SC) 1535; (5) Chandra Prakash versus State of Uttar Pradesh 2003 AIR (SC) 588;and (6) B.S. Mathur versus Union of India 2008 JT (11) 173. The matter in dispute is no more res-integra and in view of the law already settled on this point, this Court is not required to enter upon the exercise of going into the facts and ratio of the judgments cited by the learned counsel for the parties. Moreover, most of the judgments relied upon by the learned counsel for the respondent are regarding the principle for determining inter-se seniority of direct recruits and the promotees. Even in some of those judgments, the principle was laid down that where initial appointment is only adhoc and not in accordance with the rules and made as a stop-gap arrangement, officiation in such post cannot be taken into account for the purpose of seniority. In the present case, it may be said that there were no regular rules at the time the initial appointments were made in the medical college. In that eventuality, this Court is to look into the terms of appointment made at that time. The relevant portion of the appointment CWP No. 17034 of 2009 7 letter Annexure P/2 issued to the respondent is re-produced as below:- “This appointment is purely temporary on adhoc basis for a period of six months or till the post is filled up on regular basis through UPSC, whichever is earlier.” Similar was the position in Masood Akhtar Khan and others versus State of Madhya Pradesh and others 1990 (4) Supreme Court Cases 24. In that case, the petitioners were direct recruits and were appointed as temporary Assistant Engineers in the Public Health Department, with the stipulation “temporarily till further orders for six months or for a fortnight till after the selection of candidates by the Public Service Commission”. That appointment was made in pursuance of the advertisement issued in the same terms. It was held by the Hon'ble Supreme Court that appointments were made by way of stop-gap arrangement, pending regular selection by the Commission, therefore, the seniority is to be counted not from the date of initial stop-gap appointment but from the date of regular selection made under the rules. In Surinder Singh Sethi's case (supra) facts were similar. The post of Architect in the Department of Architecture Punjab was Class I post and applications were invited by the Department of Architecture for that post. It was stipulated in the advertisement that the post was temporary, though likely to continue indefinitely and that appointment would be made on adhoc basis for six months or till such time regular recommendation of the Public Service Commission became available, whichever was earlier. One P.L.Luthra applied for that post and was selected by the Departmental Selection Committee after the interview and his name was recommended. He was appointed on adhoc basis in the terms, mentioned in the CWP No. 17034 of 2009 8 advertisement. In the meantime, one more post of architecture became available and the Department decided to fill up the same on adhoc basis pending regular selection by the Commission. For that post, the petitioner therein was selected and was appointed on adhoc basis. He continued on that adhoc appointment uninterruptedly till he was given fresh appointment, after consultation with the Commission. It was held that it was a fresh selection after the post had been advertised when not only the petitioner but others were also considered and the date of his regular selection cannot be related back to his initial appointment. The seniority is determined as and when regular appointment was made, keeping in view the date of such regular appointment. Therefore, the service rendered by the respondent purely on adhoc basis till the post was filled up on regular basis through UPSC, cannot be counted as regular service for the purpose of appointment and seniority. His initial service was not regularized and it was a fresh appointment. It cannot be said that the first appointment was in accordance with the rules. The post was advertised for a period of six months or till the same was filled up on regular basis through UPSC, whichever was earlier. Many of the eligible candidates might not have applied for the post, keeping in view that the same was temporary post on adhoc basis for a short period of six months or till the same was filled up through UPSC. If the petitioner joined the post on the terms and conditions mentioned in his appointment letter, he did so at his risk. Those terms and conditions of the appointment letter are very material for determining the controversy in dispute. In view of those terms, he is not entitled to get the service rendered on adhoc counted as regular. The Tribunal committed an error of law while recording CWP No. 17034 of 2009 9 a finding to the contrary. In the result, this writ petition is hereby accepted. The impugned order is quashed and the original application filed by the respondent is dismissed. (M.M. KUMAR) (GURDEV SINGH ) JUDGE JUDGE August 8, 2011 prem