IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.978 of 1992 Date of Decision: November 17, 2009 Kaushalia Gupta .....PETITIONER(S) VERSUS State of Punjab & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - None for the petitioner. Ms. Charu Tuli, Senior Deputy Advocate General, Punjab, for the respondents. . . . AJAI LAMBA, J (Oral) This petition has been filed under Article 226/227 of the Constitution of India praying for issuance of a writ in the nature of mandamus, directing the respondents to regularise the services of the petitioner with effect from the date of her appointment on temporary basis and restore all consequential benefits such as seniority, promotion, increments etc. It has been pleaded in the petition that the petitioner was appointed as Assistant Employment Officer through Employment Exchange on CWP No.978 of 1992 [2] 5.5.1965. The petitioner joined on 10.5.1965 as such. It has been pleaded that the appointment was by a duly constituted committee. Comparative merit of the candidates was considered and appointment letter, Annexure P-1, was issued. It has further been pleaded that the petitioner was fulfilling all the requisite qualifications prescribed for filling the vacancies in Employment Exchange, in accordance with Department of Employment Punjab (Class I and II Services) Rules, 1963. The petitioner continued to work. On 30.10.1975 (Annexure P-3), services of the petitioner and one Harnek Singh were terminated, the same being on adhoc basis. It has been pleaded in Para 5 of the petition that by that time, Punjab Public Service Commission had not been able to recommend any candidate in place of the petitioner. Since order was illegal, Governor of Punjab vide Order dated 2.7.1976 withdrew Order dated 30.10.1975 and reinstated the petitioner in service in terms and conditions of her appointment letter viz. on purely on temporary basis vide Order dated 2.7.1976 (Annexure P-4). It has further been pleaded that post against which the petitioner was originally CWP No.978 of 1992 [3] appointed was a regular post meant for direct recruitment which was required to be filled after recommendation by the Punjab Public Service Commission in due course. It has been asserted that the services of the petitioner were treated as regular for all other purposes. Annual increments, earned leave and other benefits were given. The petitioner kept on pressing her claim for regularisation of her services from the date of appointment. No action on the representation, however, was taken. The petitioner wanted to compete for the post through regular process before the Punjab Public Service Commission. Competitive examination however was not held for eight years. Instead of considering the representation made by the petitioner regarding regularisation, her services were terminated vide Order dated 16.5.1980 (Annexure P-9). The petitioner however was reinstated vide Order issued by the Government on 13.3.1981 (Annexure P-10). Services of the petitioner were also regularised vide the same Order Annexure P-10. Perusal of Order dated 31.3.1981 (Annexure P-10) shows that Government of Punjab, CWP No.978 of 1992 [4] Department of Labour & Employment, has recorded that the matter was referred to the Department of Personnel and Administration Reforms on 11.11.1980 to give its approval to exclude one post of A.E.O.(G) from the purview of Punjab Public Service Commission. The administrative department had consulted the Punjab Public Service Commission for regularisation of services of the petitioner. The Commission had not agreed to the same. Question arose as to whether the post should be taken out of the purview of Punjab Public Service Commission. Be that as it may, the advice of Punjab Public Service Commission was ignored considering the hardship faced by the petitioner and in particular, the service rendered by her for 15 years. In view of the fact that petitioner fulfilled the basic qualifications in accordance with the service rules and had obtained experience of 15 years, the matter was taken up by the Council of Ministers in which approval was given that services of the petitioner be regularised while ignoring the advice of Punjab Public Service Commission. Under these circumstances, services of the petitioner were regularised. Period of absence from duty w.e.f. 19.5.1980 till her joining the duty, was CWP No.978 of 1992 [5] considered as leave of kind due. It has been pleaded in Para 13 of the petition that seniority list was prepared in the year 1976. Name of the petitioner was not incorporated in the seniority list. Seniority list dated 15.1.1976 was challenged in this Court by one Chaman Lal. The seniority list was withdrawn on 26.5.1983. The petitioner was never considered for promotion as her name was not mentioned in the seniority list. Be that as it may, learned counsel for the respondents contends that the case of the petitioner has been dealt with under Instructions dated 29.3.1957 (Annexure R-1) which read as under:- “I am directed to say that according to the instructions contained in Finance Department letter No. 5398-FOR-56/6165 dated 14th September, 1956, a Government servant appointed locally in a purely temporary capacity when absorbed in a regular post on the recommendation of the Subordinate Services Selection Board, is allowed the benefit of previous temporary service towards increment and leave. A question had arisen whether such Government servants should also be given the benefit of this temporary service for purposes of seniority. It has been decided that a temporary appointment made without the recommendation of the Board, is just a make shift arrangement and cannot, therefore, count for seniority which should, in such cases, be determined with reference to the date on which the recommendations of the Board are received.” The instructions have not been challenged. A Government servant appointed in purely temporary capacity when absorbed on a CWP No.978 of 1992 [6] regular post, is allowed the benefit of previous temporary service towards increment and leave only. The period spent on temporary appointment and service without recommendations of the Board is a stop gap arrangement and therefore, cannot count for seniority which should, in such cases, be determined with reference to the date on which the recommendations of the Board are received. I have considered the issue. The facts when considered collectively, indicate that the petitioner was appointed as Assistant Employment Officer on temporary basis. The post was required to be filled only after recommendations by the Punjab Public Service Commission. Perusal of Order, Annexure P-10 indicates that the matter of regularisation of services of the petitioner was referred to the Punjab Public Service Commission, however, the Commission did not recommend regularisation of services of the petitioner. Order, Annexure P-10 vide which the services of the petitioner had been regularised, was passed only considering the fact that the petitioner had served for 15 years and had the basic qualifications for the post. Since the post of Assistant Employment Officer could only be filled up on the CWP No.978 of 1992 [7] recommendation of the Public Service Commission, the plea in the pleadings in the petition to the effect that being eligible in all regards therefore services should have been regularised, cannot be accepted. The appointment made purely on temporary basis and terminable at any time without notice or assigning reasons, cannot be construed to be appointment by regular mode following due process of selection, simply on account of qualification or eligibility of a person who has been appointed as a stop-gap arrangement. The plea in the petition to the effect that competitive examination was not held by the Punjab Public Service Commission for 8 years, also per se, would not entitle the petitioner to get benefit of seniority for the period served on purely temporary basis. In case, an appointee does not go through the process of selection through the Public Service Commission, the fact that no selection process was conducted, would not give any additional right to the person to regularisation. Order (Annexure P-10) indicates that the post was not excluded from the purview of the Commission. It is only considering 15 years of service on temporary basis that the Government, Department of Labour and Employment, CWP No.978 of 1992 [8] Labour Branch, ignored the advice of the Punjab Public Service Commission so as to regularise the services of the petitioner on compassionate and humanitarian grounds and, hence, the services were regularised vide said order (Annexure P-10). In view of the peculiar facts and circumstances of the case and the fact that all the benefits as permissible under Annexure R-1, portion whereof has been extracted above, have been given, the petitioner is not entitled to the relief of seniority from the date of appointment on temporary basis. The petition is accordingly dismissed. No order as to costs. (AJAI LAMBA) November 17, 2009 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?