Civil Writ Petition No. 2799 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 2799 of 2008 Date of Decision: August 16, 2010 Budh Ram and Others …Petitioners Versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Rakesh Nagpal, Advocate for the petitioners. Mr. Himanshu Raj, Assistant Advocate General, Haryana, for the respondents. Kanwaljit Singh Ahluwalia, J. The petitioners, who are 15 in numbers, were posted as Assistants in the offices of the Deputy Commissioners, Sirsa, Fatehabad and Hisar. In the present writ petition, they prayed that the order dated 6.2.2008 (Annexure P14), whereby counting of ad hoc service towards grant of increment under the Assured Career Progression Scheme was withdrawn and order for recovery of amount already paid, be quashed. A perusal of order (Annexure P14) reveals that the petitioners were granted higher pay after counting their ad hoc service on completion of 8/18 years of service which are benchmark for grant of additional increment to overcome the stagnation in the cadre, for non grant of promotions, under the Assured Career Progression Scheme. It Civil Writ Petition No. 2799 of 2008 2 is averred in the writ petition that the official respondents had erred in effecting recovery of amount which was paid to them after higher pay was granted to the petitioners. It is pleaded in the writ petition that the petitioners were appointed as Clerk on ad hoc basis in the pay scale of Rs.110-4-130/5- 160/5-225. Their names were sponsored through Employment Exchange. This fact was mentioned in their employment letters. Petitioners No.1 to 6 were initially appointed as Clerks on 23.1.1976. Their services were regularized on 1.1.1980 and they were promoted as Assistant on 3.6.2003. Similarly, other petitioners were also appointed on ad hoc basis but their services were regularized lateron. The Government of Haryana had, vide its notification dated 8.2.1994 (Annexure P7), introduced a scheme known as Assured Career Progression Scheme, whereby the additional increments were to be granted to the category of employees on completion of 10/20 years of service, whereas to another category of employees, this benefit was to be given after completion of 8/18 years of service. The petitioners were given benefits under the above said scheme. However, lateron it dawned upon the authorities that wrongly they had counted ad hoc service while calculating length of service, which, according to the scheme, was not to be counted and the impugned order (Annexure P14) was passed, whereby it was ordered that the amount paid, due to counting of ad hoc service, be recovered from the salary of the petitioners. Learned counsel for the petitioners relies upon a judgment rendered in Sports Authority of India and Another v. Adarsh Mehta Civil Writ Petition No. 2799 of 2008 3 and Another 2004(4) Recent Services Judgments 294 to contend that in case the appointment of an incumbent to the post is as per the procedure, then ad hoc service is to be counted for all the benefits. Further reliance has been placed upon Rudra Kumar Sain v. Union of India 2000(3) Service Cases Today 1096, wherein it was held that in case a person possesses requisite qualification for being appointed to a particular post and is appointed with the approval and consultation of the appropriate authority and continues in the post for a long period, then such an ad hoc service is to be considered for grant of benefits. However, this Court is of the view that these judgments are not attracted to the facts of the present case. The Government had specifically issued instructions (Annexure P11) that ad hoc service, rendered by the employee, is not to be counted for computation of the period for grant of higher pay scale under the Assured Career Progression Scheme. Now the matter stands concluded by Hon'ble the Apex Court in State of Haryana v. Haryana Veterinary & AHTS Association and Another (2000)8 Supreme Court Cases 4, wherein it was held that the service rendered, either on ad hoc or stop gap arrangement, cannot be held to be a regular service for getting benefit of the revised scale of pay or selection grade. This matter was also considered by a Division Bench of this Court in Bharat Singh and Others v. State of Haryana and Others 2002(4) Service Cases Today 432, wherein it has been noticed as under:- “...3. Facts are not disputed in the present petition. The only controversy requires consideration Civil Writ Petition No. 2799 of 2008 4 by the Court is whether the service rendered by the petitioners on stop-gap or ad hoc arrangement could be reckoned as part of their regular service for calculating the total service, which the petitioners have rendered for grant of the benefit of higher standard pay scale. The Government scheme for grant of higher standard pay scale admittedly provided that an employee shall be entitled to such benefit only after 10/20 years of regular satisfactory service. Under Rule 5.3 of Haryana Civil Services (A.C.) Rules, 1988, this concept was clear on the basis of which the Government issued different policy decisions Annexures P/6 to P/8 to the writ petition. The expression "continuance regular service" by its very necessary implication would not include stop-gap or ad hoc service. They are two different concepts and cannot be inter-mingled for grant of benefits to the petitioners”. The Division Bench, in the above said case, after noticing the entire case law, held as under:- 5. The Hon'ble Supreme Court of India in the case of The Southern Railways Co-op. Bank Ltd. v. A. Swamy and another, 2001(2) SCT 125 (SC) : 2000 (4) RSJ 167, while repelling the contention like the one raised by the petitioners now, held as under :- "Rule 11 provides for continuation on Civil Writ Petition No. 2799 of 2008 5 probation for a period of 2 years and Rule 12 is the Rule for seniority. "A combined reading of the aforesaid provisions of the Recruitment Rules puts the controversy beyond any doubt and the only conclusion which could be drawn from the aforesaid Rules is that the services rendered either on ad hoc basis or as a stop gap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay of the selection grade under the Government Memorandum dated 2nd June, 1989 and 16th May, 1990, and, therefore, the majority judgment of the High Court must be held to be contrary to the aforesaid provisions of the Recruitment Rules, consequently, cannot be sustained...... "In view of our conclusions, as aforesaid, the majority judgment of the Punjab and Haryana High Court and the directions contained therein, is set aside and it is held that 12 year's period of respondent Rakesh Kumar could be counted from year 1982 for being eligible to get the Selection Civil Writ Petition No. 2799 of 2008 6 Grade under the Government Circular, dated 2nd June, 1989, as well as Classificatory (Clarificatory) Circular, dated 16th May, 1990. The Civil Appeal filed by the State of Haryana stands allowed." In the case of State of Punjab and others v. Gurdeep Kumar Uppal and others, 2001 (4) SCT 297 (SC) : 2001(3) R.S.J. 15, again the Hon'ble Supreme Court re- affirmed the above principle and held as under :- "The main question that arises for consideration in these appeals is whether the period of ad hoc services rendered by the respondents is to be included for calculating the period of 8 of 18 years of service for giving higher scale of pay under the proficiency step-up scheme. This question was considered by a three Judge Bench of this Court in the State of Haryana v. Haryana Veterinary and AHTS Association and another, 2000(4) SCT 644 (SC) : JT 2000(10) SC 561, wherein this Court took the view that for calculating 8/18 years service required for giving higher scale of pay and for determination of seniority only regular Civil Writ Petition No. 2799 of 2008 7 service rendered by the employee is to be counted and not ad hoc service. Learned counsel for the respondent strenuously contended that the respondents who are doctors serving under the State of Punjab are governed by a set of Rules and circulars different from those which were considered in the decided case and, therefore, the ratio in that case will not be applicable in these cases. We have carefully considered the said contention. We have also considered the circular letter No. 4-15-81 IPP/16047 dated 14th December, 1981. On a plain reading of the circular it is clear that the instructions contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad hoc service should be taken into account for the purpose......." "We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Haryana v. Haryana Veterinary AHTS Association and another (supra). We are satisfied that the ratio in that case applied Civil Writ Petition No. 2799 of 2008 8 to the cases in hand. The Resultant position that emerges is that the judgment/orders passed by the High Court holding that ad hoc service is to be included in calculating the period of service for giving the higher scale of pay are unsustainable and has to be vacated. Accordingly, the appeals are allowed and the judgments/orders of the High Court under challenge are set aside." Therefore, it stands concluded that the ad hoc service, rendered by the petitioners, is not liable to be reckoned towards total length of service, for the purpose of receiving the benefits under the Assured Career Progression Scheme. However, in the present writ petition, the matter was referred to the Full Bench of this Court to determine as to whether the recovery can be effected from an employee who was wrongly paid higher pay scale after counting ad hoc service. The Full Bench of this Court, vide order dated 22.5.2009 held that in case there is no misrepresentation on the part of an employee and the same was granted by the employer under the bonafide mistake, such a recovery cannot be effected. Therefore, the present writ petition is partly accepted and it is held that in view of the ratio of law as laid down in the present case by Full Bench of this Court, the respondent-employers shall not be liable to effect recovery of the amounts, paid to the petitioners, after counting ad hoc service. However, action of the respondents to withdraw the benefit, Civil Writ Petition No. 2799 of 2008 9 which was given under the erroneous belief that the ad hoc service be counted, is upheld. (Kanwaljit Singh Ahluwalia) Judge August 16, 2010 “DK”