IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 2766 of 2008. Reserved on: 07.05.2010. Decided on: 13.05.2010. Shri Haria Ram Rasik. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner: Mr. C.N. Singh, Advocate. For the Respondents: Mr. Anil Jaswal, Deputy Advocate General. Rajiv Sharma, Judge: Petitioner was initially appointed as untrained Graduate Teacher in Middle School, Joni, Tehsil Kotkhai, District Shimla vide letter dated 4.10.1968. He worked in this capacity from 7.10.1968 till 2.8.1969. He obtained B.Ed. Degree and thereafter he was posted as Trained Graduate Teacher in Government Middle School, Kuthari (Ghasni), Tehsil Rohroo, District Shimla vide letter dated 28.7.1970 on ad hoc basis. He joined his duties on 28.7.1970. He worked in Government Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - Middle School Kuthari from 12.8.1970 to 31.8.1970 and thereafter he was posted in Middle School Ratnari, Tehsil Kotkhai, District Shimla. He worked in Government Middle School, Ratnari with effect from 1.9.1970 to 5.4.1972. His services were terminated on 1.6.1972. However, he was relieved with effect from 5.4.1972 as per Annexure P-1. He was appointed as Trained Graduate Teacher on regular basis in Government Middle School, Mahori, Tehsil Theog, District Shimla through H.P. Public Service Commission. He made several representations to the respondents to condone the delay between 6.4.1972 to 21.9.1973. His representation was rejected initially on 23.3.1981. Thereafter, the petitioner again made representation and the same stood rejected on 17.2.1988 by the Director of Education (Annexure P-6). Thereafter, he also made various representations and also served legal notices on the Secretary (Education) on 1.8.1994 and 27.7.1995. He retired from service on 30.11.2002 as Head Master. His pension case was finalized by counting his service with effect from 22.9.1973 to 30.11.2002. In other words, the period of break in service with effect from 6.4.1972 to 21.9.1973 was not condoned. 2. Mr. C. N. Singh, learned counsel for the petitioner has strenuously argued that the period between 6.4.1972 to 21.9.1973 is required to be condoned and thereafter the petitioner is entitled to get increments with effect from 28.7.1970. He further contended that his qualifying service was to be counted from 28.7.1970 and not from 22.9.1973. Mr. Anil Jaswal, learned Deputy Advocate General has - 3 - strenuously argued that there is no provision for condoning the delay between 6.4.1972 to 21.9.1973. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. Petitioner was initially appointed as untrained Graduate Teacher with effect from 7.10.1968 to 2.8.1969. Thereafter he has worked on ad hoc basis after obtaining B.Ed. Degree with effect from 12.8.1970 to 5.4.1972 in Government Middle School, Kuthari and Government Middle School, Ratnari. Thereafter he was appointed on regular basis on the basis of recommendations made by the H.P. Public Service Commission and he joined as Trained Graduate Teacher in Government Middle School, Mahori, Tehsil Theog, District Shimla. 5. It is evident from Annexure A-6 that the break in service of the petitioner has not been condoned on the ground that there must be continuity between the period of ad hoc service and regular service. The ad hoc appointment must be in time scale and only the period of ad hoc service rendered by any Government servant immediately followed by regular appointment to the post of Trained Graduate Teacher is allowed towards earning the benefit of increments only. It is thus evident that the period of ad hoc service is to be counted for the purpose of earning benefit of increments in case the ad hoc service is followed by regular one. In the instant case, the petitioner has started working as untrained Graduate Teacher with effect from 7.10.1968. He has worked with effect from 28.7.1970 to 5.4.1972 on ad hoc basis as Trained Graduate Teacher. - 4 - 6. Mr. C.N. Singh, learned counsel for the petitioner has relied upon (1986) 3 SCC 325 titled Sushil Kumar Yadunath Jha versus Union of India and another. In this case the appellant was appointed on June 29, 1965 to the post of Post Graduate Teacher in Hindi in a Central Schools Unit. On 29th February, 1968 his appointment was terminated. He made a representation against the termination of his services. Fresh appointment letter was issued to him with effect from June 24, 1968 and he was informed that no benefit of the previous service rendered by him in the Kendriya Vidyalaya Sangathan would be admissible. His request for condonation of break in service was rejected by the employer. Their Lordships of the Hon’ble Supreme Court have held that it was directed on the terms on which he accepted his fresh appointment which expressly stated that he would not be entitled to continuity in service, but he accepted those terms. Their Lordships have further held that the teacher was not in a position to bargain for a better deal and he was compelled to accept whatever was dictated to him. Ultimately, their Lordships of the Hon’ble Supreme Court condoned the break in service and it was held that he should be considered as continuing in service throughout from the date of his original appointment. Their Lordships have held as under (para 5):- “We have examined the record before us and have heard learned counsel for the parties. We do think that the respondents should have found it possible to accede to the request of the appellant for condoning the break in his service. There is no doubt that his services were terminated, but the grounds on which they are said to have been terminated have subsequently not been found to be such as - 5 - to constitute a permanent deterrent to a favourable consideration of the appellant's case. Indeed the Commissioner; as we have noted earlier, had expressed the view that it was a good case for condoning the break in service and indeed those who had occasion to personally witness the quality of the appellants performance in subsequent years, as for example the Indian Ambassador at Kabul, had thought that in fairness and justice to the appellant his request should be accepted. It is true that the terms on which he was appointed, afresh expressly stated that he would not be entitled to continuity of service, but we must have regard to the circumstances in which he accepted those terms. He was in no position to bargain for a better deal and in the straightened circumstances in which he found himself he was compelled to accept whatever was dictated to him. We do not for a moment suggest that the sanctity of the contract between the parties should be given a go-bye, but what we do find is that here is a case where the subsequent conduct and the quality of his performance, of which high appreciation was recorded by his superiors, indicated that he should be relieved of the disadvantage suffered by him pursuant to that term in his contract of fresh appointment. Having regard to the interests of justice and in all the circumstances of this case we are of opinion that the appellant is entitled to an order condoning the break in his service and holding that he should be considered as continuing in service throughout from the date of his original appointment. We order accordingly.” 7. The expression “continuous service” has been considered by their Lordships in Banaras Hindu University, Varanasi and another versus Dr. Indra Pratap Singh 1992 Supp.(2) SCC 2. In this case the appointment was made to the post of Lecturer on temporary basis on 26th August, 1974 in the Department of Basic Principles in the - 6 - Institute of Medical Sciences. His appointment was effective for a period of eleven months. However, he was reappointed for a further period of 11 months. He continued by means of such appointment upto March 31, 1980. There was no reappointment thereafter. On July 21, 1980, he was appointed as Reader in Sri Ayurved College of the Nagpur University. He worked there till September 20, 1982. On September 22, 1982, he was appointed as Lecturer in Banaras Hindu University in the very same department on permanent basis. He applied for being selected under the Merit Promotion Scheme as Reader in the year 1983. The University, however, was of the opinion that he was not eligible for being considered inasmuch as he did not satisfy the requirement of eight years continuous service in the cadre. The objection was that there was break in his service between 1st April, 1980 and July 20, 1980 which means that his continuous service can be counted only from July 21, 1980. The Lecturer approached the Allahabad High Court for the redressal of his grievance. His writ petition was allowed. The Banaras Hindu University went in appeal before the Hon’ble Supreme Court. Their Lordships of the Hon’ble Supreme Court have up-held the decision of Allahabad High Court after considering at length the expression “continuous service.” Their Lordships of Hon’ble Supreme Court have held as under (paras 10, 11, 12, 13 and 15):- “In Jeevanlal (1929) Limited v. Its Workmen the expression “continuous service” fell for consideration of this Court. The employee joined the appellant’s service as a workman in 1929 and resigned in 1957. During this period he remained absent from duty without permission or leave for nearly eight months between February 1945 to October, - 7 - 1945. Under an award made between the employer and the workmen, a scheme was framed wherein the concerned clause was that “on voluntary retirement or resignation of an employee after fifteen years continuous service, gratuity at the same rate as above” was payable. The question was whether the respondent-workman satisfied the requirement of 15 years’ continuous service. Gajendragadkar, J. speaking for the Division Bench held in favour of the workmen on the following reasoning: (SCR pp. 721-23) “… there can be no doubt that in a different context the same words can and often have different meanings. As this Court has observed in Budge Budge Municipality v. P.R. Mukherjee ‘the same words may mean one thing in one context and another in different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes are scarcely of much value when we have to deal with a specific statute of our own; they may be helpful but cannot be taken as guides or precedents’ …. ‘Continuous service’ in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If an employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service.” - 8 - This decision does emphasise the fact that the said expression has no single unalterable meaning and that its content varies having regard to the context. In Words and Phrases (Vol.9) the word “continuous employment” is assigned the following meaning: “It means working with reasonable regularity, and work does not cease to be ‘continuous’ because of interruptions in occupation due to periods of temporary illness, such as are incident to people of normal health. ‘Continuously’, as used in regulations defining total permanent disability under war risk policy, does not denote absolute continuity.” Again, the word “continuous service” is given the following meaning: “Phrase ‘continuous service’, as contained in collective bargaining agreement, had to be viewed in light of terms of agreement which provided for work schedule of eight hours per day for a five day week, Monday to Friday, inclusive and, therefore, one working regular prescribed hours of labour would be rendering ‘continuous service’ within agreement even though not working on Saturdays or Sundays or more than eight hours in any 24. The counsel for the University has conceded that on several occasions prior to March 31, 1980, there were gaps of a week or so in issuing re-appointment order on temporary basis. He says that these delays were in the nature of ministerial delays, and therefore, they were condoned but so far as the gap between April 1, 1980 and July 20, 1980 is concerned he says it is of an altogether different nature inasmuch as the respondent left this - 9 - University and joined another University. But as we have stated hereinbefore, para 2(a) itself expressly recognises the said eight years service having been put in more than one University. The present gap is of that nature. True it is that it is a bit too long but even so in the light of the circumstance that the respondent was re-appointed on a permanent basis, on the very same post, in the very same department, the length of the said break pales into insignificance. We are persuaded to believe that the said increments must have been granted taking into account his past service for a period of six years in this University as well.” 8. Their Lordships have held that expression “continuous service” has to be given contextual interpretation and literal interpretation of the said words is ruled out by the context. In the present case, the petitioner was always ready and willing to work as TGT. He had worked uninterruptedly with effect from 7.10.1968 to 2.8.1969 as untrained Graduate Teacher and thereafter Trained Graduate Teacher on ad hoc basis with effect from 28.7.1970 to 5.4.1972. His services were terminated when a regularly appointed teacher relieved him. His entire service with effect from 28.7.1970 to 5.4.1972 has been rendered otiose since the period with effect from 6.4.1972 to 21.9.1973 has not been condoned. It is not the case of the respondents that the petitioner did not possess the essential educational qualification for being eligible when he was appointed as Trained Graduate Teacher on 28.7.1970 on ad hoc basis. In these circumstances, the period between 6.4.1972 to 21.9.1973 was required to be condoned. The effect of not condoning this period has resulted in depriving the petitioner the right to get increments by counting his service with effect - 10 - from 28.7.1970 onwards. This has also affected his right to get enhanced pension. In this case the qualifying service of the petitioner has been counted with effect from 22.9.1973 till 30.11.2002 instead of 28.7.1970. The petitioner has worked as untrained Graduate Teacher, on ad hoc basis in the same department and has been appointed on regular basis in the same department. In these circumstances, the period of break in service was required to be condoned. Moreover, no material has been placed by the respondent-State on record to substantiate that it explored the possibility of posting a regular incumbent who has replaced the petitioner at a place where the vacancy/post was lying vacant. The endeavour of the respondent- State should be to ensure that firstly the possibility is explored to post a regular incumbent against a vacant post and if it is not available, in these circumstances, it is open to the State to appoint a person which may lead to replacement of ad hoc teacher. In the instant case, if the vacancy was lying vacant, it was not necessary for the respondent- State to replace the petitioner by a regularly appointed incumbent. 9. The action of the respondents of not condoning the relevant period i.e. 6.4.1972 to 21.9.1973 is declared arbitrary, thus violative of Articles 14 and 16 of the Constitution of India. 10. No other point was urged. 11. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. Annexures P-3 dated 19th March, 1981 and P-6 dated 17th February, 1988 are quashed and set aside. The period of break in service with effect from 6.4.1972 to 21.9.1973 is condoned. The respondents are directed to count the period with effect from - 11 - 28.7.1970 till his regular appointment with effect from 22.9.1973 for the purpose of payment of increments as well as for pensionary benefits. The needful be done within a period of ten weeks from today. There shall, however, be no order as to costs. (Rajiv Sharma) Judge. May 13, 2010. (sck).