C.W.P. No. 6818 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 6818 of 1993 DATE OF DECISION: November 18, 2009 Yash Pal Singla .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Roshan Lal Sharma, Advocate, for the petitioner. Ms. Charu Tuli, Sr. DAG, Punjab. AJAI LAMBA, J. (ORAL) This petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing the respondents to consider the service rendered by the petitioner from 18.11.1968 to 31.12.1972 as continuous service for the purpose of seniority. It has been pleaded that the petitioner applied for the post of Stenography Instructor in Hindi with respondent no. 2 (Director, Technical Education and Industrial Training, Punjab). The petitioner was selected and was offered appointment letter on 15.11.1968 for the post of Hindi Stenography Instructor under regular pay scale. The petitioner continued to serve. The services of the petitioner were regularized w.e.f. 01.01.1973. C.W.P. No. 6818 of 1993 2 The petitioner represented for inclusion of service on temporary post for the purpose of seniority which, however, was not considered. Hence, the petition. Perusal of order of appointment Annexure P-1 shows that the petitioner was offered a temporary post for a period of three months or till a person by regular appointment is inducted, whichever is earlier. The services were liable to be terminated without notice on abolition of post. Learned counsel for the respondent contends that the appointment of the petitioner was purely on temporary basis and benefit of seniority cannot be given. The petitioner was inducted on regular basis whereupon seniority has been fixed. However, other benefits like increment, pay, leave etc. for the period the petitioner served on temporary basis has been given. Considering the stand taken by the respondents and the law as laid down by the Hon'ble Supreme Court of India in AIR 2001 SC 2691 titled State of Punjab and Others Vs. Gurdeep Kumar Uppal and Others, no ground for interference is made out. In para no. 5 of the judgment rendered in Gurdeep Kumar Uppal's case (supra), the following has been held:- “5. Learned counsel for the respondents strenuously contended that the respondents who are doctors serving under the State of Punjab are governed by a set of Rules and circulars different from those which are considered in the decided case and therefore, the ratio in that case will not be applicable in these cases. We have carefully considered the said contention. We have also considered the circular letter No. 4-15-81IPP/16047 dated C.W.P. No. 6818 of 1993 3 14th December, 1981. On a plain reading of the circular it is clear that the instructions contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad hoc service should be taken into account for the purpose. This circular in our view can no longer form the basis of the contention in view of the recent decision by this Court in State of Haryana V. Haryana Veterinary and AHTS Association (2000 AIR SCW 3301 : AIR 2000 SC 3020 : 2000 Lab IC 3127) (supra). Undisputedly the respondent at the time of their appointment were governed by the Punjab Civil Medical Services Class II (Recruitment and Conditions of Service) Rules, 1943. In clause (5) of Rule 7 of the said Rules it is provided that the seniority of the members in each branch shall be determined by the dates of their confirmation in service. Further, in the orders appointing the respondents on ad hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. It was further stated in paragraph III of the appointment letter that the appointees seniority will be determined only by merit in which he or she is placed by Punjab Public Service Commission. Thus it is clear that only regular service is to be counted towards seniority.” Likewise in JT 1992 (2) SC 491 titled Union of India through Chandigarh Administration and Another Vs. S.K. Sharma, the following has been held in para nos. 6 to 8:- C.W.P. No. 6818 of 1993 4 “6. In Masood Akhtar Khan and Ors. V. State of Madhya Pradesh and Ors. (1990) 4 SCC 24 it was held that if the initial appointment is not made according to the rules, subsequent regularization of his service does not entitle an employee to the benefit of intervening service for seniority. Seniority has to be reckoned from the date of regular appointment and not to be counted from the date of any stop-gap appointment. 7. In D.N. Agarwal and Anr. v. State of Madhya Pradesh and Ors. (1990) 2 SCC 553 it was held that regular appointment at later date cannot relate back to the date of ad hoc appointment and the employee is not entitled to claim the period of officiation between the dates of ad hoc appointment and regular appointment for being counted for the purpose of seniority. A Constitution Bench of this Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Others (1990) 2 SCC 715 held as under:- “Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Seniority cannot be determined on the sole test of confirmation, for, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such C.W.P. No. 6818 of 1993 5 post cannot be taken into account for considering the seniority.” 8. In the circumstances mentioned above we are clearly of the view that the respondent was not entitled to claim his seniority on the post of Professor (Senior Scale) from 28.9.1969 and the appellants had rightly counted his seniority from 29.9.1973 when he was regularly selected in accordance with the rules on the said post. In he result we allow this appeal, set aside the Judgment of the Tribunal dated 3.3.1988. In the circumstances of the case we direct no order as to costs.” Faced with the stand of the respondents and the judgments to which reference has been made, learned counsel for the petitioner has not been able to distinguish the judgments. I am of the considered view that no legal infirmity can be traced in the action of the respondents in not giving the benefit of temporary service while calculating seniority of the petitioner, in the facts and circumstances of the case. Vide order Annexure P-1, the petitioner was appointed only on temporary basis for a period of three months or till regular appointment is made, whichever is earlier. Service period on such temporary appointment, in the facts and circumstances of the case, cannot be considered for seniority purposes. In view of the above, the petition is dismissed. No order as to costs. 18.11.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest?