L.P.A.No. 777 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A.No. 777 of 1996 Date of Decision:- Ujagar Singh etc. Appellants . VERSUS The State of Punjab etc. Respondents CORAM : HON'BLE Mr. JUSTICE M.M.KUMAR. HON'BLE Ms. JUSTICE RITU BAHRI. Present: Mr.Vivek Sharma, Advocate, for the appellants. Mr.Suvir Sehgal, Additional Advocate General, Punjab, with Mrs. Harman Shergill Sullalr, Assistant Advocate General, Punjab, for the respondents. 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? RITU BAHRI,J. This Letter Patent Appeal by unsuccessful appellants, has been filed against the judgment dated 10.7.1996 passed by Learned Single Judge. A short question of law which arises for determination is whether the appellants are entitled to tag their service L.P.A.No. 777 of 1996 2 for the purpose of seniority rendered as Constable after they are regularised as Clerk. Brief Facts: The appellants in the writ petition have sought quashing of seniority list (Annexure P-6) and order of Director General-cum-Inspector General of Police Punjab dated 20.5.1982 (Anneuxre P-9), whereby the representation made by the appellants against the tentative seniority list was rejected. In the writ petition, the prayer was made to fix the seniority by giving them the benefit of service rendered on ad-hoc basis. The appellants had joined the Police Department in 1965 and remained working till 1973 as Clerk. Thereafter, their services were regularized between the years 1969 to 1977. The order regularising their services was passed in terms of the Government Letter dated 3.5.1977 read with letters dated 4.7.1978 and 5.1.1979. In their reply the respondents have asserted that the petitioners were initially posted as Constables in the Police Department. Subsequently, they were appointed as Clerk on different dates in the Police Department. An objection was raised that their appointment as Clerks is contrary to the provisions contained in the Police Clerical Service (State Service L.P.A.No. 777 of 1996 3 Class III) Rules, 1960. There were 64 Clerks who were appointed by transfer and their services were regularized by exercising the powers under Rule 16 of the Rules. Since, an objection had been raised for their appointments as Clerk from the posts of Constables, the Government also directed that responsibility for making irregular appointments may be fixed. The final list came to be circulated vide memo dated 24.5.1992. In this seniority list, the appellants and other similar situated persons, who joined the services as Clerks in the first instance on temporary basis were assigned seniority from the date of regularisation of their service. Whereas, the police constables have been assigned seniority from the date of their initial appointment. In the writ petition, the appellants have challenged the fixation of their seniority by the respondents claiming that it is contrary to rules. The appellants have based their claim on Rule 8 of the Punjab Police Clerical Service (State Service Class-III) Rules, 1960 (hereinafter referred to as “1960 Rules”) which provides for method of recruitment. “As per Rule 8 (1) (b) in the case of Clerks:- (i) by direct appointment; or (ii) by transfer or officials already in the L.P.A.No. 777 of 1996 4 service of Government of a State or of the Government of India; or (iii) by promotion from among the Restorers in the Police Department who are either graduates, or who are matriculate and have completed five years services as such and have qualified in a department test.” They have not pleaded that they were appointed by direct recruitment or by transfer or by promotion. The petitioners were neither by direct recruitment nor by promotion. Their appointments cannot be termed as ad-hoc. Subsequently, they were regularized as per Government Instructions issued vide letters dated 3.7.1977, 4.7.1978 and 5.1.1979 respectively. Rule 11 of 1960 Rules lays down that the inter- se seniority of the members of service holding the same class of posts shall be determined by the dates of their joining on such posts in the State. The very fact that the seniority is to be determined amongst the members of service shows that only those persons, who have been appointed on regular basis can be included in the seniority list of a particular cadre and a person who has not been so appointed, can not claim seniority in a L.P.A.No. 777 of 1996 5 particular cadre. The learned Single Judge has, therefore, rightly held that the petitioners had no right to be assigned seniority on the basis of total length of service and their seniority have been rightly fixed as on the date when their services have been regularized. The appointments of respondents No. 3 to 153, who were Constables, and had been appointed as Clerks in the police department have also been examined in detail. These appointments were made by transfer under Rule 8 (1)(b) (iii). The regularisation of the services of the erstwhile Constables have not been made with retrospective effect and, therefore, such regularisation will be deemed to be effective from 22.9.1979. The order of regularisation of services of Constables goes to show that the Government had treated such appointees to be irregular and responsibility for making irregular appointments may be fixed in the police department. The learned Single Judge partly allowed the writ petition by quashing the list Annexure P-9 so far as it relates to the petitioners and respondents No. 3 to 153 with a direction to respondents No. 1 to 2 to fix the seniority of the petitioners as well as respondents No. 3 to 153 from the dates of regularisation of their services L.P.A.No. 777 of 1996 6 and not from the date of initial appointment on the posts of Clerks or Constables. In the LPA which has been filed by the Constables who were appointed as Clerks, the argument of Mr.Vivek Sharma, learned counsel for the appellants is that their appointments on transfer basis were according to the Rules 8(1) (b) (iii) as per rules and that they were entitled to be treated as members of the service from the date of their appointments. While regularising the services, this fact has been over-looked and their services rendered from the date of transfer to the date of their regularisation should have been treated regular appointment. The very fact that after their appointment on transfer, the Government had directed that responsibility for making irregular appointments may be fixed shows that service of 64 Clerks was made in a irregular manner. Vide Annexure P-5 dated 22.9.1979, the State Government while exercising the powers conferred by Rule 16 of the Police Clerical Service (State Service Class III) Rules, 1960 has clearly observed that services of Clerks appointed on irregular basis is from Constables in the Police Department as Clerks. In the rule also, there is no provision for appointing the Constables on transfer basis which L.P.A.No. 777 of 1996 7 would involve an element of promotion on the post of Clerk. In Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra and others, 1990(2) SCC 715, The Supreme Court has held that an occasion to consider whether the benefit of seniority can be given of a service rendered on a post which was not filled according to rules. In paragraph 13 of the judgment, their Lordship of the Supreme Court has further observed that principle of deciding inter-see seniority has to confirm to the principles of equality spelt out by Articles 14 and 16. Where the initial appointment is only ad-hoc and not according to rules,the officiation on such post cannot be taken into account on considering the seniority. Learned Single Judge has placed reliance on Masood Akhtar Khan Vs. State of Madhya Pradesh and others, 1990(5) SLR 639, The Excise Commissioner, Karnataka & another Vs. V.Sreekanta, 1993(2)SLR 339, State of Gujrat Vs. C.G.Raiyanai, 1 995(1) SLR 353 and V.Sreenivasa Reddy and others Vs. Govt. of A.P.& others, 1 995 Supp. (1) SCC 572, their Lordship of the Supreme Court in Chambel Singh Vs. State of Haryana, 1994(4) S.C.T.800. After going through Annexure P-5 we are of L.P.A.No. 777 of 1996 8 the considered view that the judgment of the learned Single Judge is liable to be affirmed. The benefit of seniority has been rightly given to the petitioners from the date of their regularization i.e. 22.9.1979 vide Annexure P-5. In view of the above, Letter Patent Appeal is hereby dismissed. (M.M. KUMAR ) (RITU BAHRI) JUDGE JUDGE Anoop