IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 11454 of 1993 Date of Decision: 2.2.2010 Manmohan Singh Sub Inspector --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Gurnam Singh, Advocate for the petitioner. Mr. R.D. Sharma, D.A.G., Haryana for respondents. *** PERMOD KOHLI.J (ORAL) The sole question in this petition relates to counting of seniority by annexing the ad hoc service rendered by the petitioner prior to his substantive appointment for the purposes of seniority, promotion and various other service benefits. According to petitioner's own submission in the writ petition, he applied for the post of Sub Inspector in the Food & Supplies Department against some vacant posts without any invitation or advertisement for recruitment to such post. His application to the department was accepted resulting in his ad hoc appointment on 18.5.1967, where he worked up to 30.11.1971. In the year 1972 Food & Supplies Department, Haryana advertised the posts of Sub Inspectors to be filled up by selection by the Haryana Subordinate Services Selection Board (HSSSB). Petitioner again applied in response to the advertisement being possessed of the requisite qualifications. Before the completion of selection process his ad hoc services were dispensed with on 3.6.1972 along with similar other appointees as Sub Inspector working on ad hoc basis. Annexure P-2 is the CWP. No. 11454 of 1993 -2- relieving order. It appears that the recruitment on regular substantive basis could not be completed and in the meantime the State of Haryana received some recommendation from the local employment exchange. The recommendees were offered the ad hoc appointment of Sub Inspectors of Food & Supplies Department. Petitioner being also one of the recommendees of the employment exchange was again appointed on ad hoc basis vide order dated 18.3.1973. Clause 1 of the appointment letter clearly provides that the service is temporary and purely on ad hoc basis not to be extended beyond six months. A further stipulation that service is liable to be terminated at any time during the period without any notice and without assigning any reason as also for termination on arrival of regular candidates from the HSSSB. While the petitioner was working on ad hoc basis on the strength of the aforesaid appointment letter (Annexure P-3), he was selected by the HSSSB on regular basis pursuant to the advertisement made in the year 1972. The petitioner's name existed at Sr. No. 39 in the select list. He joined on selection/appointment as a regular Sub Inspector, Food & Supplies Department and his ad hoc arrangement came to be terminated vide Annexure P-5. The petitioner claims his ad hoc service rendered from 18.5.1967 to 17.6.1972 for the purposes of his seniority, promotion and other service benefits. He is also seeking parity with one Des Raj, another appointee along with the petitioner on the recommendations of the HSSSB, who was at Sr. No. 114 in the merit list and was given the benefit of ad hoc service earlier rendered by him on the basis of judgement dated 11.2.1988 passed by the Hon'ble Single Judge of this Court in CWP No. 4468 of 1986 titled as Des Raj v. State of Haryana and others and subsequent judgement of Division Bench of this Court dated 21.9.1991 passed in CWP No. 8063 CWP. No. 11454 of 1993 -3- of 1991. It is contended on behalf of the petitioner that the Division Bench judgement passed in CWP No. 8063 of 1991 has been upheld by the Hon'ble Supreme Court in view of the dismissal of SLP (Civil) No. 4735 of 1992 vide order dated 22.4.1992 (Annexure P-8). The claim of the petitioner for seniority, promotion and other service benefits by taking into consideration the ad hoc service rendered by him has been seriously opposed by the respondents in the written statement and during the course of arguments. Respondents have relied upon another Division Bench judgement of this Court in case of Sohan Lal v. State of Haryana reported as 1992 (4) SLR 190. I have heard learned counsel for the parties. None of the parties have referred to any statutory rule dealing with the controversy raised in this writ petition, though, both the sides have referred to judgements of this Court, referred to herein above. Factual aspect is undisputed. Petitioner was engaged on ad hoc basis from 18.5.1967 to 27.6.1972 and later from 18.3.1973 to 22.4.1974. This engagement of the petitioner was without following any procedure for making selection/appointment. The first spell of ad hoc appointment i.e. w.e.f. 18.5.1967 to 27.6.1972 was apparently a back door entry, whereas the second spell was also on the recommendations of the employment exchange. The petitioner came to be appointed on regular substantive basis on 22.4.1974 on being selected by the HSSSB by inviting applications by a public notice. Much emphasis is laid by the petitioner on the question of parity with Des Raj, who also served on ad hoc basis and later appointed in the same selection process along with the petitioner and was placed below in the merit list/select list than the petitioner. Des Raj was given the benefit CWP. No. 11454 of 1993 -4- of ad hoc service on the basis of the directions issued in CWP No. 4468 of 1986 by a Single Judge of this Court and later by a Division Bench in CWP No. 8063 of 1991. The later judgement in CWP No. 8063 of 1991 passed by a Division Bench is in fact to implement the earlier judgement of the Single Bench which had attained finality. Nevertheless, this judgement directs the State to count the ad hoc service of the petitioner for purposes of seniority, promotion and other service benefits rendered by Des Raj. The aforesaid judgement of the Division Bench was challenged by the State of Haryana in SLP (Civil) No. 473 of 1992. However, the SLP was dismissed in limini by the Hon'ble Supreme Court by order dated 22.4.1992 affirming the judgement of the High Court. It is under these circumstances the petitioner is seeking parity with Des Raj for grant of seniority and other related benefits. Respondents have also relied upon another Division Bench judgement of this Court in case of Sohal Lal vs. State of Haryana 1992 (3) SCT 423, wherein a similarly situated person filed a petition claiming benefits of ad hoc service but the Hon'ble Division Bench dismissed the same holding that the ad hoc service is not to be counted for purposes of seniority and promotion etc. The cleavage of the two Division Bench judgements of this Court came to be settled by a Full Bench of this Court in 1995 (1) PLR 152. A similar writ petition filed by one Chamel Singh, who also served as Sub Inspector, Food & Supplies Department on ad hoc basis from 9.11.1967 to 14.10.1971 and later appointed on regular basis on the recommendations of the HSSSB filed a writ petition claiming benefit of ad hoc service for purposes of seniority, increment, promotion and other CWP. No. 11454 of 1993 -5- service benefits. A Division Bench of this Court comprising of Hon'ble Mr. Justice R.P. Sethi and Hon'ble Mr. Justice H.S. Bedi noticed the conflicting opinions of the two Division Benches of this Court in case of Des Raj and Sohan Lal, referred the matter to a larger bench. A Full Bench of this Court considered the issue in depth and relying upon a Constitution Bench judgement of the Hon'ble Supreme Court in case of The Direct Recruit Class-II Engineering Officers' Association Vs. State of Maharashtra AIR 1990 SC 1607 and some other judgements of the Hon'ble Supreme Court approved the judgement rendered in Sohan Lal's case and over ruled the judgement rendered in Des Raj's case. The Hon'ble Full Bench observed as under:- “ For the purpose of present enquiry, clauses (A) and (B) in the Direct Recruit Class-II Engineering Officers' Association and others case (supra) coupled with elucidation of these clauses in Aghora Nath Dey's case (supra) and also the views expressed in the earlier judgments of the apex Court, it can be said: (i) that the period as an ad hoc appointee cannot be taken into account for considering the seniority of an incumbent; (ii) it is only when such an appointment is as per rules and not by way of a stop gap arrangement and only a proceduraly formality is required to be complied with that the services so rendered will be taken into account towards his seniority in the cadre; (iii) In the absence of Rules, it would have to be kept in view as to whether the appointment so made is against an existing vacancy and not for a limited period and in that case the period so spent by an incumbent can be considered to determine his seniority in the cadre; (iv) CWP. No. 11454 of 1993 -6- if the appointment is otherwise regular except for the deficiency of certain procedural defects, such defect/defects stand cured with the subsequent regularisation; (v) mere long stay at the post on account of some inaction on the part of a delinquent officer or on account of interim direction of the Court will not clothe an appointee with any right to tag such a period to determine his seniority in the cadre. Period of service as a stop gap arrag shall be ignored while determining his seniority in the cadre. The above points are only illustrative and not exhaustive in content. Any point which is not specifically covered therein is to be examined in the light of clauses (A) and (B) of Direct Recruit Class-II Engineering Officers' Association and others case (supra) as explained in Aghore Nath Dey's case (supra).” After above said observations the Hon'ble Full Bench dealt with the two conflicting views of this Court and approved the later judgement in Sohan Lal's case with the following observations:- “ Division Bench in Sohan Lal's case (supra) after examining (Rule 11 of the Haryana Food and Supplies Department Sub Offices (Group C) Service Rules, 1982) and in the light of the decision of the apex Court in Proessor S.K. Sharma's case (supra) and in Masood Akhtar Khan's case (supra) came to the conclusion that the service rendered on ad hoc basis is not to be counted for seniority. However, the bench left the question open whether ad hoc service with count for leave, increment and pension. This view is in confirmity with the decision of the apex Court noticed above and is thus approved.” Regarding the status of an employee appointed on the basis of the recommendations of the local employment exchange Hon'ble Supreme Court in case of The Excise Commissioner, Karnataka & another Vs. CWP. No. 11454 of 1993 -7- Sreekanta reported as 1993(2) SLR 339 has noticed as under:- “ After giving our anxious consideration to the respective contentions of the parties it appears to us that the Writ Petitioner/respondent, Sri V. Sreekanta, was appointed as a local candidate through Employment Exchange in view of the specific sanction of the Govt. for such ad hoc appointment the terms of appointment in the context of sanction of the said posts by the Govt., in our view, clearly demonstrates that such appointment of the said respondent and other employees in 1968 was ad hoc appointment given to local candidates being sponsored by the local Employment Exchange. It was only in October 26, 1971, the said respondent became eligible to be recruited in the said Class III post, and such appointment/or regularization of his ad hoc appointment was made possible because of the framing of the said special rules of recruitment in 1970. In our view Mr. Narasimha Moorthy is justified in his submission that the respondent was not entitled to claim seniority from the date of his initial appointment on ad hoc basis but he was only entitled to claim seniority from the date of his subsequent appointment or regularization under the said special rules of recruitment in 1970. It appears to us that under rule 3 of the said special rules of recruitment of 1970, the respondent, having possessed the minimum qualifications prescribed by the said special rules of recruitment for recruitment to Class III posts and the said respondent having been appointed on or after January 1, 1965 as a local candidate to a Class III post and having put in a continuous service of one year prior to October 1, 1970 was eligible to be appointed under the said special rules of recruitment and the respondent was given such appointment w.e.f. October 26, 1971 under the said special rules of recruitment of 1970. CWP. No. 11454 of 1993 -8- The said respondent was entitled to be treated as direct recruit properly made under the said special rules of 1970 only from October 26, 1971 and the service rendered by him prior to the said date was only on the basis of ad hoc employment not made in accordance with the rules of recruitment. In the aforesaid circumstances, the decision of the Division Bench of the Karnatka High Court appears to be clearly errorneous and we have no hesitation in setting aside the same. Learned Single Bench of the Karnatka High Court, in our view, has rightly dismissed the writ petition and we affirm the said decision. The appeal is accordingly allowed without any order as to costs.” In the aforesaid judgement also the Hon'ble Supreme Court has considered the Constitution Bench judgement of the Hon'ble Apex Court in Direct Recruit Class-II Engineers' case and held that even appointment on the basis of the recommendations of the employment exchange cannot be termed to be an appointment made in accordance with rules. It is pertinent to note that the appointment according to rule means an appointment in consonance with the Articles 14 and 16 of the Constitution. Appointment made in violation of the mandate of Articles 14 and 16 cannot be termed as an appointment according to rules and will not enure to the benefit of the appointee. According to petitioner's own admission/statement in the writ petition his two spells of ad hoc appointment have to be ignored same being not according to rules. Otherwise also the petitioner's services were not regularized on the basis of his initial appointment on ad hoc basis. To the contrary he was selected on the basis of a fresh application filed by him in response to the public notice inviting applications for regular appointment. CWP. No. 11454 of 1993 -9- It has had no concern with his initial ad hoc appointment. Fortunately the petitioner has been selected in the process of selection. Assuming a case where the ad hoc appointee is not selected, he has to make way for the regular appointee particularly in view of the clear stipulation in his appointment, whereby the petitioner was appointed on ad hoc basis on the recommendations of the employment exchange. Thus by no yardsticks the ad hoc service can be counted for purposes of seniority and promotion etc. both being independent of each other. The judgement relied upon by the petitioner in Des Raj's case has been specifically over ruled by a Full Bench of this Court and in view of the law laid down by the Hon'ble Apex Court in Maharashtra Engineers' case and other judgements referred to above, this petition deserves to be dismissed. I order accordingly. (PERMOD KOHLI) JUDGE 2.2.2010. lucky Whether to be reported to the Reporters? Yes/No.