Punjab-Haryana High Court
Sarban Singh And Ors vs State Of Punjab And Ors` on 29 August, 2014
Author: Mahesh Grover
Bench: Mahesh Grover
C.W.P. No.13314 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
C.W.P. No.13314 of 2011 (O&M)
DATE OF DECISION : 29.8.2014
Sarban Singh and others PETITIONERS
VERSUS
State of Punjab and others RESPONDENTS
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Shri D.S.Patwalia, Senior Advocate with Shri Salil Sablok,
Advocate for the petitioners.
Ms.Sudeepti Sharma, D.A.G. Punjab.
Shri A.K.Chopra, Senior Advocate with Shri N.D.Kalra, Advocate,
MAHESH GROVER, J.
The petitioners are aggrieved of the seniority list circulated vide letter dated 9.6.2011 (Annexure P-6) pertaining to the Inspectors in the Department of Cooperative Societies on the plea that it violates the essential rule of seniority as contained in the Punjab Cooperative Department (State Service) Class-III Rules, 1978 (hereinafter referred to as the rules).
The petitioners entered the service on ad hoc basis when requisition was made by the respondent/State for filling up the vacancies of Inspector Grade- II/Sub-Inspector, Cooperative Societies (as the post was then known as). The GHANSHYAM DASS 2014.09.04 14:35 I am the author of this document high court chandigarh C.W.P. No.13314 of 2011 -2- petitioners' names were sponsored by the Employment Exchange and upon facing a process of selection by a duly constituted Selection Committee by the Head Office, the petitioners entered service. Few of the appointment letters which are similar as in the case of the petitioners, have been appended to the petition to indicate that their appointment was initially made for six months with a clear directive that in the eventuality of the candidates entering service through the Staff Selection Board before six months, their services were liable to be terminated. It was also contained in the order itself that the selection of the petitioners was being made as per the selection made by the Selection Committee constituted by the head office.
Subsequently, the nomenclature of these posts was changed to Inspector Grade-I with effect from 17.7.1992.
The services of all the petitioners were regularised with effect from 1985 or the subsequent dates, but not from the date of their initial appointment. It is also pertinent to mention here that the break in service of the petitioners was condoned by the respondents and the period regularised.
The private respondents were appointed on regular basis by way of direct recruitment and entered service in the intervening period of the petitioners' initial service on adhoc basis till their regularization.
A tentative seniority list was issued by the respondents against which the petitioners filed objections, but the same were declined vide Annexure P-6 by which final seniority list was circulated which is now the cause of grievance of the petitioners.
The petitioners would refer to Rule 11 of the rules which is extracted here below :-
"11. Seniority of members of service : The inter se seniority of the members of the Service holding the same class of posts GHANSHYAM DASS 2014.09.04 14:35 I am the author of this document high court chandigarh C.W.P. No.13314 of 2011 -3- and in the same or identical grade of pay shall be determined by the length of continuous appointment in such posts. Provided that in the case of members recruited by direct appointment, the order of merit determined by the Commission or any other recruiting authority shall not be disturbed and person appointed as a result of an earlier selection shall be senior to those appointed as a result of a subsequent selection :
Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows :
(a) A member recruited by direct appointment shall be senior to a member recruited otherwise.
(b) A member appointed by promotion shall be senior to a member appointed by transfer ;
(c) In the case of members appointed by promotion, seniority shall be determined according to seniority of such members in the appointment from which they were promoted and
(d) In the case of members appointed by transfer from different cadres their seniority shall be determined according to pay preference being given to a member who was drawing higher rate of pay in the previous appointment and if the rates of pay drawn are also the same, then by their length of such service in such appointment and if the length of such service is also the same, older member shall be senior to a younger GHANSHYAM DASS 2014.09.04 14:35 I am the author of this document high court chandigarh C.W.P. No.13314 of 2011 -4- member.
2. In the case of members whose period of probation is extended under Rule 10 of these rules the date of appointment for the purpose of this rule shall be deemed to have been deferred to the extent the period of probation is extended. NOTE : This rule shall not apply to members appointed on purely provisional basis pending their passing the qualifying test."
The thrust of the argument is that if their entry into service was in accordance with the accepted mode of public appointment i.e. through the Employment Exchange which has to be held a valid mode of public employment in view of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, then they cannot be deprived of the benefit of the period of ad hoc service for the purpose of their seniority in view of the repeated judgments of the Hon'ble Supreme Court, particularly keeping in view the rule of seniority which talks of continuous length of service on a post.
The respondents, on the other hand, plead that the petitioners cannot be given the benefit of ad hoc service as their entry through Employment Exchange cannot be construed to be a valid mode of public appointment and since the respondents were appointed after a due selection, they would be entitled to be assigned seniority higher than the petitioners. Besides, the rule talks of continuous appointment on such posts which would evidently mean a regular post and no other meaning can be assigned to it. Reliance has also been placed on the note appended to the rule which states that the rule shall not apply to the persons appointed on provisional posts pending their passing the qualifying test.
The respondents have placed reliance upon a judgment of the GHANSHYAM DASS 2014.09.04 14:35 I am the author of this document high court chandigarh C.W.P. No.13314 of 2011 -5- Hon'ble Supreme Court in State of Haryana and others v. Vijay Singh and others 2012 (5) S.L.R. 691 (S.C.) wherein the Hon'ble Supreme Court observed while dealing with a similar rule that such service on adhoc basis could not be construed even if the employees were appointed through the Employment Exchange.
As against this, the petitioners have placed reliance upon a judgment of the Hon'ble Supreme Court in State of Bihar v. Upendra Narayan Singh and others 2011(1) S.C.T. 208 wherein the Hon'ble Supreme Court while relying on earlier precedents, observed as follows :-
"31. The ratio of the above noted three judgments is that in terms of Section 4 of the 1959 Act, every public employer is duty bound to notify the vacancies to the concerned employment exchange so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television."
The obvious reason to observe as above was the laudable objective to defeat the system of sharing the spoils which violates Article 16 of the Constitution of India. Para-32 of this judgment is also extracted here below :-
"32. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th GHANSHYAM DASS 2014.09.04 14:35 I am the author of this document high court chandigarh C.W.P. No.13314 of 2011 -6- and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together."
The law regarding determination of seniority by counting the ad hoc service has by now crystalized and leaned favourably towards the ad hoc employees who gained employment through a valid mode of selection and if a proper procedure and due process has been followed, then the benefit of continuous length of service by counting the ad hoc service has to be granted to the employee.
The judgment relied upon by the learned counsel for the respondents in State of Haryana and others v. Vijay Singh and others (supra) would indicate that the initial appointments though made through the Employment Exchange, were not made by a competent authority. As against the Director Education who was the competent authority, appointments were made by the District Education Officer with nothing shown to the Court as to whether he was empowered to do so or the rules amended in this regard.
In the instant case, nothing has been shown to this Court that the initial appointments were not in accordance with law. Rather, averments made by the petitioners that they were selected by a due process of law by following the rules and by the competent authority, have not been denied by the official respondents. They have specifically admitted that due process of appointment was adopted.
GHANSHYAM DASS2014.09.04 14:35 I am the author of this document high court chandigarh C.W.P. No.13314 of 2011 -7-
If that be so, then the judgment relied upon by the respondents in State of Haryana and others v. Vijay Singh and others does not come to their rescue and rather, the Court would have to proceed on the assumption that the assertion made by the petitioners regarding the process of employment was validly followed with no violation of Articles 14 or 16 of the Constitution of India and hence this period is to be legitimately counted for the seniority.
The petitioners would, therefore, be entitled to the benefit of ad hoc service rendered by them for the purpose of counting their seniority.
The petition stands allowed. The respondents are directed to re- determine the seniority keeping in view the discussion made above.
(MAHESH GROVER)
August 29, 2014 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO
GHANSHYAM DASS
2014.09.04 14:35
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