Gujarat High Court
K vs State on 28 December, 2011
Author: C.L. Soni
Bench: C.L. Soni
Gujarat High Court Case Information System
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SCA/12125/2000 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12125 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.L. SONI
Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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K.
J. FULETRA - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SHALIN N MEHTA for
Petitioner(s) : 1,
Mr. Pranav Dave, AGP for Respondent(s) :
1,
RULE SERVED for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE C.L. SONI
Date
: 28.12.2011
CAV JUDGMENT
The question raised in this petition is as to whether the services rendered by the petitioner between 16.2.87 to 4.9.1997 can be considered as regular services for the purpose of granting benefit of higher grade scale under the Resolution dated 16.8.1994?
It is the case of the petitioner that the petitioner was appointed on the post of Depot Manager Class II on the basis of the advertisement and pursuant to interview held for the purpose of selection to the post of Depot Manager Class-II. As stated in the petition, the petitioner came out with flying colors in the said interview and by order dated 27.1.1987, the petitioner was appointed as Depot Manager, Class-II in the Central Medical Stores Organization. The petitioner joined the services as Depot Manager on 16.2.1987. It is the case of the petitioner that when the above selection process was undertaken, there were no Recruitment Rules and the Recruitment Rules came into force with effect from 13.3.1995. However, his appointment has been termed as an ad hoc appointment. As stated in the said order, the appointment of the petitioner was only for one year or till the availability of a candidate selected through the Public Service Commission, whichever is earlier.
As averred in the petition, in the year 1997, the Gujarat Public Service Commission ("GPSC" for short) has conducted selection for the post of Depot Manager in accordance with the Recruitment Rules of 1995 and the petitioner was selected for the said post vide order dated 1.9.1997. Said order is found at Annexure-C to the petition. As further stated in the petition, the respondent No.1 passed one resolution -order dated 12.2.1998 resolving to consider the period of service from 5.9.1995 to 4.9.1997 as probation period. Thereafter, the respondent no.1 passed further order dated 10.9.1999 whereby the period of ad-hoc services rendered by the petitioner as Depot Manager Class II from 16.2.1987 to 4.9.1997 was regularized. It is the case of the petitioner that by virtue of the above order, (Government Resolution) dated 10.9.1999, the petitioner was deemed to be regularly appointed to the post of the Depot Manager with effect from 16.2.1987, that is, date of joining and since the petitioner would complete nine years regular service on the post of Depot Manager on 15.2.1996, he would be entitled to the Higher Grade Scale benefit and, therefore, the petitioner made representation to respondent NO.2 to grant such benefits. Additionally, the petitioner has also brought on record order dated 5.2.2000 whereby the ad-hoc services rendered by the petitioner from 16.2.1987 to 4.9.1997 were regularized and it was decided to continue the petitioner on long term basis as Depot Manager (Drugs) from 5.9.1997. After the above said order, the petitioner received communication dated 14.7.2000 whereby the petitioner was informed that as per the communication from the State Government dated 5.7.2000, the petitioner is not entitled to Higher Grade Scale with effect from 16.2.1987 and, therefore, the application of the petitioner for grant of higher grade scale is filed. Against this communication denying benefit of higher grade scale to the petitioner, the petitioner has preferred the above referred special civil application. The petition was admitted on 21.12.2001.
Reply affidavit was filed on 15.2.2001. The stand taken by the respondents in the affidavit in reply is to the effect that vide order dated 27.1.1987, the petitioner was appointed for a period of one year or till availability of regularly selected candidate from the GPSC, whichever is earlier. It is further stated by the respondents that the petitioner resumed the duty with effect from 16.2.1987. It is further stated that the period of ad hoc appointment was completed on 15.2.1988 from the date of resumption of duty and since the proposal was made to the GPSC to continue the petitioner for a further period of one year was not accepted, the services of the petitioner came to be terminated by order dated 1.9.1990. Against the said order, the petitioner had preferred Special Civil Application No. 7142 of 1990 and this Court directed the department to reinstate the petitioner with back wages with effect from 3.9.1990. Pursuant to said order, the petitioner was reinstated with back wages vide order dated 26.4.1993. As stated further in the affidavit, proposal was then made to the GPSC on 19.12.1994 to regularize the services of the petitioner and during that period, the Commission requested the State Government to finalize the Recruitment Rules of the Depot Manager and the Recruitment Rules were published on 13.3.1995. Accordingly, requisition was sent to the GPSC on 2.8.1996. Thereafter, the GPSC recommended name of the petitioner on 4.8.1997 and the petitioner was then appointed vide order dated 1.9.1997. It is further stated in the affidavit that the petitioner was relieved on ad-hoc basis from the post of Depot Manager vide letter dated 4.9.1997 and as per the Government order dated 1.9.1997, the petitioner resumed his duty on 5.9.1997 as a fresh regular candidate. As further stated in the reply affidavit, the services of the petitioner for the purpose of higher grade scale is required to be considered from 5.9.1997 and not from 16.2.1987 because the service of the petitioner from 16.2.1987 to 4.9.1997 has been considered as continuous services for the purpose of pension and leave vide Government Resolution dated 28.3.2000 and the said period was regularized by Government Resolution dated 10.9.1999. It is further stated in the reply that in view of the above facts, as per the provisions made in the Government Resolution dated 16.8.1994, the petitioner is not entitled for the Higher Grade Scale for a period from 16.2.1987 to 4.9.1997 especially when the services of the petitioner for the above said period was regularized for pension and leave benefits and not for the purpose of seniority.
Both the learned Advocates have advanced their arguments. Learned Advocate Mr. Mehta for the petitioner would submit that the services rendered by the petitioner for a period between 16.2.1987 to 4.9.1987 were regular service. Learned Advocate Mr.Mehta for the petitioner has drawn attention of this Court to the order dated 10.9.1999 at Annexure-E page 21 to submit that the State Government had regularized ad-hoc services between 16.2.1987 to 4.9.1987. Learned Advocate Mr. Mehta has also argued that when the petitioner was first appointed vide order dated 27.1.1987, there were no recruitment rules for the post of Depot Manager, Class-II. Learned Advocate Mr. Mehta has also submitted that pursuant to the advertisement for filling up the post of Depot Manager, selection process was conducted by the respondents and the petitioner came out with flying colours in the interview. The petitioner was given appointment in the pay scale of Rs.650-1200 on the post of Depot Manager, Class-II. Learned Advocate Mr. Mehta has heavily relied on the judgment passed by this Court in the writ petition being Special Civil Application No. 7142 of 1990 filed by the petitioner himself. From the said judgment, learned Advocate Mr. Mehta has laid emphasis on the observations of this Court contained in following paragraphs :
"On a look at the appointment order it clearly appears that the ad-hoc appointment is made for a period of one year or upto the time candidate selected by the GPSC is available, whichever is earlier. Word 'ad-hoc' would mean for the special purpose with respect to the subject or thing or pertaining to or for the sake of this case alone or arranged for this purpose. It can thus be seen that the purpose for appointment to the post, which is permanent, is inbuilt in the appointment order itself. Thus, it can reasonably be said that the petitioner's appointment to the post in question is for a period particular purpose namely for filling in the same till a candidate selected by the GPSC is available. The nature of the post of Depot Manager in the Central Medical Stores Organization is such that it might have been even felt by the Government that the post should be filled in for public cause inter alia into see that sub-standard or expired drugs may not be supplied for being used in the hospitals, save at the cost of human life. It is an admitted position that the recruitment rules have not been framed so far so far that it has not become possible for the respondent No.3 GPSC to make selection of an eligible or suitable candidate. However, it is not that the post in question was filled in by back door method.
A public advertisement was issued, applications were invited and it was the Selection Committee, who after interviewing the candidates selected the present petitioner for the purpose of appointing him to the post,however, till upto the time a regular candidate is selected by GPSC for the purpose. The petitioner was found eligible as per the requirements stated in the advertisement."
Learned Advocate Mr. Mehta has submitted that the petitioner was constrained to file the above referred writ petition against termination of services and, therefore, the observations made by this Court in his earlier petition would support his case that the petitioner has rendered service during the above said period. Learned Advocate Mr. Mehta would contend that the appointment of the petitioner was made by public advertisement and through selection process when there were no recruitment rules and the petitioner was ready and willing to face due selection process as per the Rules, if the recruitment rules were prevalent at the relevant time. It is submitted that the petitioner having gone through the selection process undertaken by the respondents at the relevant time and having been selected for the post of Depot Manager, his appointment pursuant to such selection process has to be treated as regular service for all the purposes especially when by subsequent order dated 10.9.1997, his services for the aforesaid period were regularized. Learned Advocate Mr. Mehta would thus submit that the respondents are not justified in not treating the services of the petitioner for the aforesaid period as regular services for the purpose of grant of higher grade scale to the petitioner as per the Government Resolution dated 16th August, 1994. In support of his arguments, learned advocate Mr. Mehta has relied on the decision of the Hon'ble Apex Court in the case of Punjab State Electricity Board and others versus Jagjiwan Ram and others, reported in (2009) 3 SCC 661 and laid emphasis on para 10 of the said judgment. Relying on the said judgment, learned Advocate Mr. Mehta argued that once an employee is regularized under any statute or scheme framed by the employer, then, he becomes a member of the regular establishment from the date of regularization. Learned Advocate Mr. Mehta thus urged to allow the petition.
Learned Asstt. GP Mr. Dave for the respondents has vehemently argued that in no circumstances, the services rendered by the petitioner for the above said period can be termed as a regular services. He drew the attention of this Court to the initial order of appointment dated 27.1.1987 Annexure-A to point out that the petitioner was appointed purely on ad-hoc basis for one year or till regularly selected candidate is made available through the GPSC, whichever is earlier. He argued that this order clearly reveals that it was by way of stopgap arrangement, the petitioner was appointed for a period of one year or till regularly selected candidate through GPSC is made available, whichever is earlier. Learned AGP Mr.Dave has taken me through order dated 10.9.1999 to point out that this order clearly reveals that the petitioner was initially appointed on ad-hoc basis and resumed his duties on 16.2.1987 and, thereafter, he was regularly appointed through the GPSC by order dated 1.9.1997 pursuant to which, the petitioner reported for duty on5.9.1997 and his period of probation was decided to be reduced and the services rendered by the petitioner for the period between 16.2.1987 to 4.9.1987 was ordered to be regularized. Learned AGP Mr. Dave has taken stand to point out from this order that the petitioner knew that the petitioner was appointed by way of stopgap appointment till regularly selected candidate is made available through GPSC and then he appeared in the selection process conducted by the GPSC for the purpose of appointment on regular establishment and ultimately, the petitioner is regularly appointed with effect from 5.9.1997 on the basis of an order dated 1.9.1997 and, therefore, till the petitioner was regularly appointed through GPSC, the petitioner was not on regular establishment or was not regular appointee but he was just an ad-hoc appointee serving on stopgap arrangement. Learned AGP Mr. Dave has further drawn my attention to the order dated 28.3.2000 whereby the State Government has decided to join the services of the petitioner for the above said period from 16.2.1987 to 4.9.1987 with subsequent regular services for the purpose of pension and leave. Learned AGP Mr. Dave has argued that if the services of the petitioner for the period between 16.2.1987 to 4.9.1987 were to be treated as regular services as submitted by the petitioner, then, it would not have become necessary for the Department to pass the order dated 28.3.2000. Learned AGP Mr. Dave has argued that to give the benefit of the earlier services rendered by the petitioner for the purpose of pension and leave, the Government has passed above said order.
Learned AGP Mr. Dave has vehemently argued that the judgment rendered by this Court in Special Civil Application NO. 7142 of 1990 filed by the petitioner himself is placed on record by the respondents along with their reply affidavit and in fact, the said judgment nowhere lays down that the services of the petitioner would stand regularized for the period between 16.2.1987 to 4.9.1997 for all purposes. Learned AGP Mr. Dave has, therefore, argued that the learned advocate for the petitioner is not correct in submitting that the services of the petitioner for the above said period has been stated as regularized, even for the purpose of grant of benefit of higher grade scale.
Learned AGP Mr. Dave would, thus, submit that the appointment of the petitioner on the post of Depot Manager, Class II was purely on ad-hoc basis and for a limited period, made for stopgap arrangement to await regularly selected candidate on the post of Depot Manager, through GPSC. Learned AGP Mr. Dave further submitted that from all the documents on record, it is clearly seen that the appointment of the petitioner was never as regular employee on regular establishment. He therefore submitted that the services rendered by the petitioner for the aforesaid period cannot be treated as regular services and cannot be considered for the purpose of grant of Higher Grade Scale and the State Authority is justified in taking the decision vide communication dated 14th July, 2000 not to consider the services rendered for the aforesaid period for the purpose of Higher Grade Scale. He also submitted that the petitioner is not entitled to the relief claimed in this petition and the petition being devoid of merits, is required to be dismissed.
In support of his arguments, learned AGP Mr. Dave has relied upon the decision in the case of State of Haryana versus Haryana Veternary & AHTS Association and another, reported in (2000) 8 SCC page 4. From this judgment, he pointed out that there is difference between regular service and continuous service and an employee who is in ad-hoc services is not entitled to the benefit of selection grade till such employee is regularly selected and become an employee on the regularly establishment. He further pointed out that in the case before the Hon'ble Apex Court also, the appointment of the respondent employee was considered as fresh appointment from the date of his selection as regular employee by the Public Service Commission and his past services on ad-hoc basis was held not to be counted for the Selection Grade Benefit.
Learned AGP Mr. Dave has also relied on the decision in the case of State of Punjab and others versus Ishar Singh and others, reported in (2002) 10SCC page 674. There also, the Hon'ble Apex COurt has laid down that the services rendered by an employee as an ad-hoc employee cannot be considered in reckoning the period of of service required for the purpose of fixation of pay in the revised scale.
Learned AGP Mr. Dave has also relied on the decision in the case of State of Punjab and another versus Ashwani Kumar and others, reported in (2008) 12 SCC page 572 to point out that there also, the Hon'ble Apex Court has held that the services rendered by an employee as an ad-hoc employee cannot be included for calculating seniority. Summarizing his arguments, learned AGP Mr. Dave ultimately submitted that it is well settled position of law that the services rendered by an employee on ad-hoc basis cannot be considered for the purpose of giving benefit of Higher Grade Scale especially when the record clearly reveals that the appointment of the petitioner was not only purely ad-hoc but it was also stopgap arrangement till regularly selected candidate was made available through GPSC and especially when the services rendered by the petitioner as an ad-hoc employee was ordered to be continued with the regular services for the purpose of pension and leave. Learned AGP Mr. Dave would, thus, submit that in view of the principles of law in this regard settled by the Hon'ble Apex Court, the petitioner is not entitled to any relief and therefore, this petition is required to be dismissed.
I have heard the arguments advanced by both the learned advocates at length. I have also gone through the record of this petition. From the order dated 27.1.1987, it appears that the the petitioner was appointed purely on ad-hoc basis for a period of one year or till regularly selected candidate through GPSC was made available. Thus, the appointment of the petitioner was purely as stopgap arrangement till regularly selected candidate is appointed through GPSC. The second important aspect which could be gathered from the order dated 10th September, 1999 is to the effect that the judgment rendered by this Court in Special Civil Application NO. 7142 of 1990 is to the effect that the appointment of the petitioner was with a clear intention which was even known to the petitioner that it was by way of stopgap arrangement till regularly selected candidate was available through GPSC and ultimately the petitioner came to be regularly appointed only through GPSC vide order dated 1.9.1997 and the petitioner resumed duty on 5.9.1997. Thus, the petitioner got regularized himself through GPSC vide order dated 1.9.1997. If the petitioner was regular appointee, as canvassed on behalf of the petitioner, then, there was no question of the petitioner again appearing in the selection process undertaken by the GPSC for being appointed on this very post on the regular establishment. The petitioner having accepted this regular appointment through GPSC w.e.f. 5.9.1997, cannot claim that the earlier services rendered by the petitioner should be treated as regular services for the purpose of grant of benefit of Higher Grade Scale. Even from the judgment delivered in the case of petitioner in Special Civil Application No. 7142 of 1990, it is not possible to read that the appointment of the petitioner is treated as regular appointment. At this stage, following observations from that very judgment are required to be taken note of which are thus quoted:
"Thus, in the facts of the case, it is on the face of it, clear that the termination of the petitioner is bad and contrary to the very appointment order, since time has yet not become ripe for terminating the petitioner, as no candidate is selected by G.P.S.C. For the simple reason that even the recruitment rules have yet not been finalized."
Thus, this Court was considering legality or otherwise of the order of termination and held that the termination order is bad in law on the consideration that the time had not ripe for terminating services of the petitioner as no candidate was selected by the G.P.S.C. In fact, from this very judgment, it can be clearly seen that the services of the petitioner for the aforesaid period was never treated as regular services and it was always treated as ad-hoc till regularly selected candidate was available.
Thus, from the record available with the petition, it clearly appears that the appointment of the petitioner was purely ad-hoc appointment for the period between 16.2.1987 to 4.9.1997 and the services for the said period were ordered to be counted and joined with the regular services for the purpose of pension and leave and cannot be considered as regular services for the purpose of benefit of Higher Grade Scale. Judgment of Hon'ble the Apex Court cited by learned Advocate Mr. Mehta would also be of no help to the case of the petitioner. In fact, in this judgment, it is nowhere laid down that an ad-hoc employee, on being regularized, his past services would be considered as regular service as if his appointment was, from the very beginning, a regular appointment. In fact, this judgment lays down that the work charge employee, on being regularized, his past services cannot be clubbed with the services in the regular establishment and the work charge employees cannot claim the benefit of past services for the purpose of fixation of seniority in the regular cadre, promotion to the higher post, fixation of pay in higher grade scale, grant of increments etc. The latest judgment by Hon'ble the Apex Court on the issue involved is in the case of Surendra Nath Pandey and another versus Uttar Pradesh Cooperative Bank Limited and another, reported in (2010) 12 SCC page 400. From the said judgment, para 9 is quoted as under:
"9. We are of the view that the real issue is whether persons employed on stopgap or ad hoc basis were entitled to the benefit of pay scales with increments during the period of service on daily or stopgap or ad hoc basis. Unless the appellants are able to establish that either under the contract or applicable rules or settled principles of service jurisprudence, they are entitled to the benefit of pay scale with increments during the period of their stopgap/ad hoc service, it cannot be said that the appellants have the right to claim the benefit of pay scales with increments."
In the present case also, the petitioner has failed to establish that either under the contract or the applicable rules or settled principles of service jurisprudence, the petitioner is entitled to Higher Grade Scale by considering the period of his stopgap/ad-hoc service. In fact, the Government Resolution specifically requires that the benefit of Higher Grade Scale is available only to the employees who have rendered regular services. Thus, from the various decisions of the Hon'ble Apex Court, it is well established that the stopgap and ad-hoc employee, in absence of any rules for granting benefits, not entitled to the benefit of Higher Grade Scale etc. In view of this settled legal position, the claim of the petitioner for the benefit of Higher Grade Scale for the period between 16.2.87 to 4.9.1997 is not acceptable. According to my opinion, the services rendered by the petitioner during the period 16.2.87 to 4.9.1997 was service as an ad-hoc employee and not as a regular employee and, therefore, said services cannot be considered to be regular service for the purpose of granting Higher Grade Scale and, therefore, the petition is devoid of any merits and it is required to be dismissed. It is accordingly dismissed. Rule is discharged. No order as to costs.
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[C.L. Soni,J.] an vyas Top