Civil Writ Petition No. 8218 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 8218 of 2010 Date of decision: 13.09.2011 Anoop Singh ...Petitioner Versus State of Haryana and others ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Rajbir Sherawat, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana for the State. Mr. Anil Malik, Advocate for respondent No. 3. ***** RANJIT SINGH J. The petitioner as well as respondent No. 3 are working as Clerk in the office of Advocate General, Haryana. The petitioner has filed the present writ petition to impugn the order making respondent No. 3 senior to the petitioner in the cadre of Clerk. As averred in the petition, the petitioner was appointed as Clerk on stop gap basis on 18.08.1999 for 89 days. Thereafter, the petitioner was relieved on 06.11.1999. After a gap of 3 days, he was again appointed on the stop gap basis w.e.f. 09.11.1999 and continued till 06.02.2000. Like the petitioner, respondent No. 3 was also appointed as stop gap basis on 12.08.1999 and continued as such up to Civil Writ Petition No. 8218 of 2010 2 01.11.1999. Respondent No. 3 was appointed w.e.f. 09.11.1999 and continued as such up to 06.02.2000. Both, the petitioner and respondent No. 3 were appointed on daily wages basis w.e.f. 07.02.2000. The services of the petitioner as well as the respondents have been regularized in terms of policy instructions, which was issued on 01.10.2003. Following this policy, the order regularizing the petitioner as well as respondent No. 3 was passed. The manner of fixing seniority was clearly mentioned in the order. Copy of the order has been annexed with the petition as Annexure P-2. The services of the petitioner as well as of respondent No. 3 were, thus, regularized on the conditions contained in Annexure P-2. One of the condition imposed was that their seniority will be determined w.e.f. 01.10.2003 in accordance with the date of their joining the post on daily wages, as per the provisions under para 4 of the Government notification dated 01.10.2003. This condition reads as under:- “(iii) Their seniority will be determined with effect from Ist October, 2003 in accordance with the date of their joining the post on daily wages as per provision made under Para-4 of the Govt. Notification dated 1.10.2003 and as per Service Rules applicable to them.” As per the counsel for the petitioner, both the petitioner and respondent No. 3 had joined the service on daily wage basis on 07.02.2000. That being the position, the petitioner being older in age to respondent No. 3 was required to be assigned seniority over respondent No. 3. However, ignoring this position, respondent No. 3 has been shown senior to the petitioner by taking into account the Civil Writ Petition No. 8218 of 2010 3 services rendered by him as a stop gap arrangement. The representation filed by the petitioner in this regard has been rejected and he, accordingly, has filed the present writ petition to impugn the seniority list as well as Annexure P-6. Official respondents as well as private respondents have filed replies. The only stand taken is that Sh. Sanjiv Kumar, respondent No. 3, was appointed as stop gap basis on 12.08.1999 whereas the petitioner was appointed on 18.08.1999. Taking this fact into consideration, Sh. Sanjiv Kumar- respondent has been made senior to the petitioner by counting the service rendered by him as stop gap arrangement. While ordering regularization of the services of the petitioner and respondent No. 3, it was clearly mentioned in their appointment order that their seniority shall be determined in accordance to the date of joining the post of daily wagers. It is not in dispute that both the petitioner as well as the respondent had joined as daily wagers on 07.02.2000. Whether under such circumstances, the appointment of the petitioner as well as of respondent No. 3 as stop gap arrangement could be taken into consideration to assign seniority, would be, thus, an issue. In this regard, the State as well as the private respondents have relied upon para 4 of the policy instructions, which is annexed with the writ petition as Annexure P-1. It is stated in this paragraph that seniority of adhoc/contract or daily wage employees so regularized vis-a-vis Group-C and Group-D employees shall be determined w.e.f. 01.10.2003. It is further mentioned that inter se seniority of such adhoc/contract or daily wage Group C and D employees shall be determined in accordance with Civil Writ Petition No. 8218 of 2010 4 the date(s) of joining the post on adhoc/contract or daily wage basis. The instructions also provide that in case the date happens to be the same then the older employee shall rank senior to an employee younger in age. This paragraph of the instructions reads as under:- “ The seniority of adhoc/contract or daily wage employees so regularised vis-a-vis the Group-C and Group-D employees shall be determined with effect from 1st October, 2003. The inter-se seniority of such adhoc/contract or daily wage Group-C and Group-D employees shall be determined in accordance with the date(s) of their joining the post on adhoc/contract or daily wage basis. If the date of joining the post on adhoc/contract or daily wage basis by such adhoc/contract or daily wage employee is the same, then an older employee shall rank senior to an employee younger in age. If the date of appointment of the direct recruit and the date of regularization of adhoc/contract or daily wage employee is the same, the direct recruit shall be senior.” On this basis, counsel for the petitioner would contend that only date of appointment on daily wage would be relevant to determine the seniority whereas counsel for the respondents would vehemently submits that the petitioner as well as respondent No. 3 were appointed on contract basis initially as stop gap arrangement and their seniority will have to be determined by taking that service into account. I have considered the rival submissions made before me. Civil Writ Petition No. 8218 of 2010 5 The contents of para 4 of the policy instructions as well as the order to regularization and the conditions imposed therein clearly convey that the seniority of the petitioner as well as respondent No. 3 have to be determined from the date of appointment as daily wager. If there was any intention to take into consideration the earlier service rendered as stop gap basis either by the petitioner or by the respondent to determine their seniority then this ought to have been clarified by providing in the order regularizing their services (Annexure P-2). The recital contained in Annexure P-2 is very clear and categorical. The wording is unambiguous and it is clearly stated therein that the seniority shall be determined on the basis of joining the post as daily wages. The service rendered as stop gap, adhoc or contract employee is not mentioned and, thus, would not be open to be taken into consideration for assigning seniority. The policy instructions can also not be read in a manner to count the stop gap service for the purpose of seniority. The policy instructions referred to in this, would not mean that other services would be required to be taken into consideration. The policy instructions clearly makes a provision for different types of services and it is not only meant to apply for the regularization of daily wagers. In that context, it is mentioned that seniority of all the employees, who joined the post on adhoc/contract basis, is to be determined accordingly on the basis of their appointment as such. In view of the clear wording of the order regularizing the services of the petitioner and respondent No. 3, the approach adopted by the official respondent to count stop gap services is impermissible. The action of the respondents in assigning seniority to respondent No. 3 over the petitioner, thus, is clearly Civil Writ Petition No. 8218 of 2010 6 illegal. Respondent No. 3, till date has not challenged order, Annexure P-2, in any manner. The impugned order of seniority, thus, cannot be sustained. The writ petition is allowed. Directions are issued to the respondents to re-issue the seniority list in accordance with the directions as made. September 13, 2011 ( RANJIT SINGH ) rts JUDGE