CWP No. 14849 of 2010 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 14849 of 2010 Date of Decision: 15.09.2011 Suresh Kumar ...Petitioner Versus State of Punjab and others ..Respondents. CORAM: HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. C.M.Chopra, Advocate, for the petitioner. Mr. B.S.Chahal, Deputy Advocate General, Punjab. Mr. Kasturi Lal, Advocate, for respondents no. 2, 5 and 6. Mr. Manpreet Singh Longia, Advocate, for respondents No. 7 and 9. Mr. Arun Singla, Advocate, for respondent No. 8. **** SURYA KANT, J.(Oral) The petitioner seeks quashing of order dated 08.09.2009 (Annexure P-9) whereby his date of promotion as Assistant has been postponed from 28.09.1987 to 02.02.1989 and consequently his seniority in the cadre of Assistant has also been disturbed. (2) The facts may be noticed briefly. CWP No. 14849 of 2010 [2] (3) The petitioner joined as a Clerk-cum-Typist on adhoc basis through Employment Exchange on 15.10.1981 in the office of Financial Commissioner, Punjab. He continued to work on adhoc basis till he was selected by the Subordinate Services Selection Board, Punjab on 27.10.1983 and joined on regular basis on 02.02.1984. (4) The recruitment to the post of Assistant at the relevant time used to be regulated by the Statutory Service Rules known as 'The Punjab Financial Commissioner's Secretariat (Class-III) Service Rules, 1986 ( in short '1986 Rules'). Rule 8 read with Appendix-C reads as under:- 8. Method of recruitment and qualification:- 1) Recruitment to the service shall be made in the manner as specified in Appendix 'C' to these Rules. 2) No person shall be appointed to any post in the service unless he possesses the qualifications and experience specified against that post in Appendix 'C' to these rules. 3) All appointments to the service by promotion shall be made by selection on seniority cum merit basis and no person shall be entitled to claim promotion on the basis of seniority alone. 4) No person shall be recruited to any post in the service by direct appointment unless he possesses knowledge of Punjabi language of Matriculation standard or its equivalent or passes test in Punjabi language of matriculation standard to be held by such authority as may be specified by Government in this behalf from time to time. Provided that in cases where the minimum educational qualifications for any post to be filled in by direct appointment are less than Matriculation standard, the standard of knowledge of Punjabi shall be lowered accordingly. 5) Where any vacancy occurs or is about to occur in the service, the appointing authority shall determine in CWP No. 14849 of 2010 [3] what manner such vacancy shall be filled. APPENDIX 'C' (Referred to in Rule 8) Sr. No. Designatio n of post Method of recruit- ment Qualification and experience for appointment by 1 2 3 4 5 6 7 8 2 Assistant 25% by direct appoint ment 75% by promo -tion - From amongst the persons who are graduates of a recognized university or its equivalent and who have qualified in the competitive test held by the Board. From amongst clerks having an experience of working as such for a minimum period of five years and who have qualified the test specified in the Punjab State Assistant Grade Examination Rules 1984; provided that for appointment to the post of Assistant (Judicial) a person shall also be a Law Graduate of a recognized University. (5) It may be seen that 75% posts of Assistants are to be filled in by promotion from amongst Clerks having 'experience' of working as such for a minimum period of five years and who have qualified the Assistant Grade Examination. (6) The petitioner along with four other Clerks was promoted as an Assistant vide order dated 28.09.1987 (Annexure P-2) as they had qualified the Assistant Grade Examination. The afore stated order reads as follow:- CWP No. 14849 of 2010 [4] “ORDER:- S/Shri/Smt. Sarup Lal (SC), Kuldip Singh, Suresh Kumar, Anita Devi and Jodh Singh, Clerks who have qualified the Assistant Grade Examination are provisionally promoted as Assistants in the scale of Rs. 600-1120/plus usual allowances admissible from time to time. 2. Promotion of Shri Sarup Lal is against a reserved vacancy meant for the members of the Scheduled Castes. 3. These promotions are subject to the result of the writ petitions/appeals pending in the Supreme Court in CA Nos. 3326 and 3327 of 1982 and are made without prejudice to the right of direct recruitees as and when appointed. 4. The inter-se seniority of these promotees will be decided later.” (7) Thereafter a seniority list of Assistants was issued by the official respondents in the year 1996 in which the petitioner was assigned seniority as Assistant w.e.f. 28.09.1987 i.e. the date of promotion order (Annexure P-2). The said seniority has been now disturbed vide the impugned order dated 08.09.2009 (Annexure P-9) on acceptance of the representation(s) submitted by the private respondents to the effect that the petitioner was erroneously granted 'seniority' as a Clerk w.e.f. 15.10.1981 i.e. the date of his adhoc appointment. The view taken is that the adhoc service rendered by the petitioner prior to his regular appointment is not to be counted towards 'seniority' under the statutory rules and the inter-se seniority of the Clerks was to be determined as per the merit list at the time of selection. (8) The real issue, in my considered opinion, is little different. As a broad principle it can be accepted that the adhoc service, unless the Rules say can not be counted towards the seniority CWP No. 14849 of 2010 [5] which is to be assigned from the date when someone becomes member of a service/cadre. Similarly, in the case of direct recruits, the most fair and transparent criteria for determination of their inter-se seniority can be as per the merit position in the selection list. (9) The controversy, however, is required to be settled with reference to the provisions of the 1986 Rules for appointment to the post of Assistant. As has been noticed earlier, Appendix-C provides that a Clerk with minimum five years experience as such and on qualifying the Assistant Grade Examination becomes eligible for promotion as Assistant against 75% promotion quota. The phrase 'experience' is different than the expression 'service'. The aforestated Rule does not require five years 'service' to be possessed by a Clerk to become eligible for promotion as Assistant. It requires only five years 'experience'. It is well settled that the experience gained by an employee even while working on adhoc basis is as good he earns while working on regular basis. The petitioner was admittedly appointed as a Clerk-cum-Typist on adhoc basis through a competitive process on 15.10.1981. The service rendered by him as an adhoc Clerk till his regular appointment on 02.02.1984 is an actual and valid experience. The order dated 28.09.1987 reveals that the petitioner was promoted along with four other Clerks as they had qualified the Assistant Grade Examination. The petitioner was admittedly having five years 'experience' as a Clerk at the time of his promotion on 28.09.1987. Thus, no fault can be found with his promotion as an Assistant. CWP No. 14849 of 2010 [6] (10) The contention raised on behalf of the private respondents that the promotion of the petitioner was 'provisional' does not improve their case in any manner as the said condition was imposed on all the promotee(s). It is not in dispute that rest of the Assistants promoted along with the petitioner have been assigned seniority w.e.f. 28.09.1987. No different treatment can be given to the petitioner in violation of Articles 14 and 16 of the Constitution in that regard. (11) For the reasons afore-stated, the writ petition is allowed. The impugned order dated 8.9.2009(Annexure P-9) qua the petitioner is set aside and it is directed that for all intents and purposes including future promotion the petitioner shall be treated to have been promoted as an Assistant w.e.f. 28.09.1987. Consequential benefits, if any, shall also be granted to the petitioner within a period of four months from the date of receipt of a certified copy of this order. (12) Dasti. 15.09.2011 (SURYA KANT) 'ravinder' JUDGE