C.W.P. No.19714 of 2002 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.19714 of 2002 Date of Decision: 23 -11- 2010 Sukhwinder Singh Kahlon ....Petitioner v. State of Punjab and another ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Vivek Sharma, Advocate for the petitioner. Mr.J.S.Puri, Addl. A.G., Punjab for the respondents. *** KANWALJIT SINGH AHLUWALIA, J. Petitioner was initially appointed as Soil Inspector in the Soil Conservation and Engineering Department on regular basis on 10.4.1974. In the year 1977, nine posts of Assistant Soil Conservation Officer were advertised. These posts were to be filled up on ad hoc basis. The advertisement so issued is annexed as Annexure P1. Vide letter dated 12.4.1977, Annexure P2, those persons who were working in the department were also called upon to apply, if eligible. The petitioner who was working as Soil Inspector along with other Soil Inspectors applied for the post of Assistant Soil Conservation Officer. Departmental Selection Committee selected seven persons. Petitioner was one amongst them. Consequently, C.W.P. No.19714 of 2002 [2] appointment letter dated 10.6.1977, Annexure P3, was issued to the petitioner. The appointment letter specifically stated that appointment of the petitioner was for a period of six months or till the candidates recommended by the Punjab Public Service Commission (hereinafter to be referred as, `PPSC') are appointed by direct recruitment on regular basis. Appointment to the post of Assistant Soil Conservation Officer was through two channels. 50% posts were to be filled up by promotion and 50% by direct recruitment. Since directly recruited persons were not available, ad hoc arrangement was made till the direct recruits were appointed by the PPSC. Lateron in February, 2001, the services of the petitioner were regularised. This being broad factual matrix, the petitioner has approached this Court with a prayer that ad hoc service rendered by him from June, 1977 till February, 2001 should be counted towards seniority. Petitioner is aggrieved and has assailed the order dated 12.2.2001, Annexure P4, whereby his services were regularised w.e.f. 12.2.2001. Furthermore, petitioner seeks quashing of order dated 23.10.2002, Annexure P8, whereby his representation in pursuance of orders issued by this Courtin an earlier writ petition viz. Civil Writ Petition No.18460 of 2002, filed by the petitioner was rejected. To appreciate the prayer made by the petitioner, it would be necessary to highlight few facts. After the petitioner, joined the service in terms of appointment letter dated 10.6.1977, Annexure P3, his all other colleagues, who were appointed along with him were adjusted in other departments on regular basis but the petitioner continued to work in the Department of Chief Conservator of Soils, Punjab. Considering long continuation on the post of C.W.P. No.19714 of 2002 [3] Assistant Soil Conservation Officer, a proposal was mooted by the Chief Conservator of Soils, Punjab that services of the petitioner be regularised and for this purpose, a decision was taken that one post of Sub Divisional Soil Conservation Officer may be taken out of the purview of PPSC. Approval to this effect was also given by the Personnel Department. The matter, as per procedure, in the shape of memorandum was laid before the Council of Ministers, which granted its approval and order dated 12.2.2001, Annexure P4, was issued which reads as under:- “The Governor of Punjab is pleased to regularise the services of Sh.Sukhwinder Singh Kahlon, Sub Divisional Soil Conservation Officer, Pathankot working in the Soil Conservation Department on ad hoc basis w.e.f. the date of issuance of this order. Chandigarh C.L.Bains Dated 12.2.2001 Financial Commissioner,Development and Secretary, Pb. Govt. Agri. Deptt.” It has been urged in the present petition that instead of regularising the services of the petitioner w.e.f. 12.2.2001, the date on which the order was issued, he be made regular from the date of his joining service. In support of his contention, the following arguments have been raised by counsel for the petitioner:- i) That the petitioner has been working continuously and was also granted annual increments and his selection was made by the Selection Committee, therefore, continuation of service vests right in the petitioner that his services should have been made regular from the date he joined in pursuance of appointment letter dated 10.6.1977, Annexure P3. ii) Petitioner had worked for a period of 23 years on the post of Assistant Soil Conservation Officer on ad hoc basis. It is C.W.P. No.19714 of 2002 [4] stated that in case services of the petitioner are regularised from the date of his joining, no financial loss will be caused to the department. However, seniority of the petitioner shall improve. iii) Since one post was taken out of the purview of PPSC, the said post was lying vacant, therefore, the petitioner is entitled to the benefit of service rendered w.e.f. 17.6.1977 and not with effect from 12.2.2001. iv) Petitioner has placed reliance on Rudra Kumar Sain & Ors. v. Union of India & Ors., JT 2000(9) SC 299 to urge that any person who has worked fairly for a long period on the post having requisite qualification, the service rendered by him on ad-hoc basis should be protected as the Department had not taken necessary care to regularise the services of the employee at appropriate stage. To controvert the above said submissions made by counsel for the petitioner, the State has taken a stand that petitioner was appointed as Agriculture Inspector on 10.4.1974 in the Soil and Water Conservation Department on regular basis. In the year 1977, Government decided to fill up nine posts of Assistant Soil Conservation Officers purely on ad hoc basis to cope up the work of the department, as these posts fell to the share of direct recruitment quota and issued the advertisement accordingly. Out of these posts, seven posts were to be filled up from General Category candidates and two posts were reserved for Scheduled Castes category candidates. A letter was also circulated for the said posts amongst the employees who were working in the department, to apply, if eligible. C.W.P. No.19714 of 2002 [5] Petitioner applied for one of the posts of Assistant Soil Conservation Officer which belonged to General category candidates and subsequently he was selected as Assistant Soil Conservation Officer. Reference has been made to the appointment letter to say that it is evident from the contents thereof that appointment of the petitioner as Assistant Soil Conservation Officer was on ad hoc basis against the post meant for direct recruitment. As per Punjab Soil Conservation and Engineering Services (Class-II) Rules, 1974, the posts of Assistant Soil Conservation Officer were being filled up in 50:50 ratio by direct recruitment and by promotion. Prior to 30.6.1993, the posts of Sub Divisional Soil Conservation Officer and Divisional Soil Conservation Officers were filled up by way of direct recruitment and promotion. The following categoric averment made by the respondents is as under:- “It is further submitted that the adhoc service for the purpose of seniority is not covered under rules 1974. The petitioner was working as Assistant Soil Conservation Officer since 17-6-1977. Keeping in view the length of continuous adhoc service of the petitioner a post of Assistant Soil Conservation Officer was taken out of the purview of Punjab Public Service Commission, Patiala vide Punjab Govt. Notification No.GSR/02/Const/Art-320/Amd.(85)2000, dated 8.12.2000, for the purpose of regularization of the service of the petitioner. Accordingly, the services of the petitioner were regularized with effect from 15.2.2001 vide order issued under Endst.No.13/1/92/3. Agri.III/2469, dated 15-2-2001, which is annexed as Annexure P-4 to the writ petition. It is further submitted that there is no provision in service rules as well as in the instructions issued from time to time for the regularization of the services of petitioner retrospectively. Therefore the action of the respondent to regularize the services of the petitioner w.e.f. 15-2-2001 is legal, C.W.P. No.19714 of 2002 [6] constitutional and sustainable in the eyes of law.” Counsel for the State has submitted that since all other persons, who were selected along with the petitioner have been adjusted in various other departments, the petitioner only continued to function in the present Department. Taking into consideration his length of service, his services were regularised prospectively vide order dated 12.2.2001. It has been further brought to the notice of this Court that in the year 1980 lining work of the department was transferred to the Punjab State Tubewell Corporation along with staff consisting of 2 divisions of Bhatinda circle. Similarly in the year 1989 Kandi area work was also transferred to the Kandi Project along with staff consisting of one Divisional Soil Conservation Officer and four Assistant Soil Conservation Officer along with their supporting staff. Due to this, posts falling to the share of direct recruits i.e. the posts of Assistant Soil Conservation Officer were not filled up. In the written statement, it has been averred as under:- “..........Due to the above reason the posts of Assistant Soil Conservation Officers falling to the share of direct recruitment could not be filled up till 30-6-1993. It is further submitted that the Punjab Government vide its Notification No.12/37/89-1-Agri.III/7730, dated 30-6-1993 sanctioned three tier pay scale to the categories of Agriculture Inspector/Soil Conservation Inspectors/Agriculture Inspectors (Soil Survey)/ Soil Survey Assistant/Research Assistant, Assistant Soil Conservation Officer and Divisional Soil Conservation Officer and formed a single cadre of these three categories of posts and change the designation of the posts of Agriculture Inspector/Soil Conservation Inspectors/Agriculture Inspectors (Soil Survey)/Soil Survey Assistant/Research Assistant, Assistant Soil Conservation Officer as Soil Conservation Officer and Sub-Divisional Soil Conservation Officer C.W.P. No.19714 of 2002 [7] respectively. Prior to the issuance of notification dated 30-6-93, the post of Sub Divisional Soil Conservation Officers and Divisional Soil Conservation Officers were being filled up at the ratio of 50:50 by direct recruitment and by promotion according to (Class-II) rules 1974. After the merger of three categories of posts in a single cadre, the post of Sub-Divisional Soil Conservation Officer and Divisional Soil Conservation Officer are being filled up 100% by placement. To regularize this action of the Government, the operation of the rule 8(1)(a) of the Punjab Soil Conservation Engineering Rules, 1974 was stayed vide Govt. notification No.3/3/94/3. Agri. III/1601, dated 9-2-2000.” After hearing counsel for the parties, this Court is of the view that it is not in dispute that petitioner was appointed to the post of Assistant Soil Conservation Officer, which fell to the share of direct recruits. Furthermore, direct recruit could only be appointed by the PPSC. The appointment letter specifically stated that petitioner had to continue on ad hoc basis till the PPSC sends a recommendation containing the name of the selectee. Admittedly, the petitioner had not competed with those who were selected by the PPSC. It has been held by the Hon'ble Apex Court in Uttaranchal Forest Rangers' Asson. (Direct Recruit) & Ors. v. State of U.P. And Ors., 2006(4) SCT 487 that seniority can be fixed only from the date of substantive appointment. The petitioner was appointed against the post which was meant for direct recruits. To facilitate regularisation of the petitioner, one post was taken out of the purview of PPSC from the quota meant for direct recruits. In these circumstances, this Court is of the view that petitioner cannot steal a march over those employees who were appointed by the PPSC and by later amendment by way of 100% placement. C.W.P. No.19714 of 2002 [8] The way the services of the petitioner were regularised after taking one post out of the purview of PPSC, same amount to nothing but a back door entry. There is no provision in the Rules to grant regularisation and seniority from the back date. Considering the entire conspectus, this Court is of the view that no fault can be found with the impugned order dated 23.10.2002, Annexure P8. Petitioner without appearing before the PPSC has been granted the benefit of regularisation. He had not competed with all those who were eligible to be appointed by way of direct recruitment. Once the regularisation of the services of the petitioner was due to a concession extended by the State, he cannot claim as a matter of right and urge that he has a vested right of being regularised from the date he was appointed on ad hoc basis. Hence, there is no merit in the present petition and the same is hereby dismissed with no order as to costs. ( KANWALJIT SINGH AHLUWALIA ) November 23rd, 2010 JUDGE RC