Punjab-Haryana High Court
Gurmit Singh vs State Of Punjab And Others on 31 August, 2012
Author: G. S. Sandhawalia
Bench: G.S.Sandhawalia
Civil Writ Petition No.13984 of 1994 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.13984 of 1994
Date of decision: 31.8.2012
Gurmit Singh ....Petitioner
Vs.
State of Punjab and others ....Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Kapil Kakkar, Advocate for the petitioner.
Mr. Vijay Kumar Chaudhary, AAG, Punjab for the respondents
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G. S. SANDHAWALIA, J.
1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a suitable writ especially in the nature of Mandamus directing the respondents to consider the case of the petitioner for the post of Lecturer in school cadre on the ground that persons junior to the petitioner have been considered and appointed as Lecturers and the petitioner had been denied the promotion to the post of Lecturer illegally without counting the period of service on adhoc basis.
2. The case put up by the petitioner in the amended writ petition is that he was appointed as Math. Master on adhoc basis on 24.10.1980 on the recommendation of the Employment Exchange in accordance with rules against a vacant post in the pay scale of ` 620-1200. The petitioner continued to hold the post uninterruptedly till the regularisation of his services in accordance with the rules vide order dated 4.3.1986 with effect from 1.4.1985 and was thereafter appointed as Math Master at Civil Writ Petition No.13984 of 1994 -2- **** Government High School, Siryewala. It was pleaded that the services of the petitioner was governed by the Punjab State Education Class-III (School Cadre) Service Rules, 1978 (hereinafter called as "the Rules") and as per rules the petitioner had possessed the requisite qualifications and experience laid down in Appendix 'B'. He was accordingly eligible to be appointed as Mathematics Master in accordance with the rules. In the year, 1991 on the upgradation of the schools to the Senior Secondary Level, the Punjab Education Department decided to fill up the posts of Lecturers and called the male Masters, who were appointed upto the year 1981 for choice of station in the subject of Mathematics. The petitioner had been appointed in the year 1980 and was eligible for promotion and thus, liable to be considered for the post of Lecturer.
3. In the year 1992, the department again decided to fill up the remaining posts in different subjects and again called the male Masters upto the year 1981 were again called for choice of station. Similar was the position in the year 1993 and the petitioner was not considered for promotion inspite of his representation. The detailed representation was filed by the petitioner on 22.8.1994 to the Director, Public Instructions, Punjab that he should be given the benefit of the adhoc service and persons junior to him who were appointed in 1981 were being promoted to the post of Lecturer in which reliance was placed upon the judgment of this Court in Malook Singh and others Vs. State of Punjab. Resultantly, the present writ petition was filed which was admitted for regular hearing on 20.12.1994.
4. In the written statement filed by the respondents it was pleaded that there was no provision in the service rules for counting the adhoc service rendered by a Punjab Govt. employee for fixing the seniority Civil Writ Petition No.13984 of 1994 -3- **** for promotion purpose and as such the petitioner has no cause of action to file the present writ petition. It was averred that that the Masters/Mistress appointed upto the year 1981 on regular basis were called for station of choice and services of the petitioner were regularised with effect from 1.4.1985 and, therefore, he was not entitled to be called for promotion/station of choice. Accordingly, it was pleaded that the service of the petitioner was regularised from 1.4.1985 and he would be considered for promotion on the basis of his date of regularisation. It is pleaded that the Full Bench decision of this Court had overruled the order passed by a Division Bench in Malook Singh Vs,. State of Punjab with the observations that the adhoc service rendered by the Government employee will not be counted for fixing seniority.
5. Counsel for the petitioner has vehemently argued that he was appointed on the recommendations of the District Employment Officer in the pay scale of ` 620-1200/- against a vacant post and the respondents had admitted the said fact in the reply and his regularisation of service had been done thereafter against a regular post and thus, the service from 24.10.1980 was liable to be counted and he was liable to be promoted as Lecturer after taking his adhoc period into consideration. The respondents had promoted juniors to the petitioner who were appointed in the year 1981 whereas he was appointed in the year 1980 and therefore, provisions of Article 14 of the Constitution of India was violated.
6. The said submission is liable to be rejected. Admittedly, Rule 11 of the Rules provides that seniority in each cadre of the service shall be determined on the basis of continuous length of service and as per note given seniority of the members has to be determined as and when they are regularly appointed keeping in view the date of such regular Civil Writ Petition No.13984 of 1994 -4- **** appointment. Rule 11 of the Rules reads as under:-
"11. The seniority in each cadre of the Service shall be determined on the basis of continuous length of service on a post in that cadre of the service:
Provided that -
(i) in the case of members recruited by direct appointment the order of merit determined by the Commission, the Board or any other recruiting authority, as the case may be, shall not be disturbed.
(ii) in the case of two or more members appointed on the same date seniority shall be determined in the following manner :-
(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 or transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; 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 a higher rate of pay in his previous appointment; and if the rates of pay drawn are also the same, then by their length of service in those appointments; and if, the length of such service is also the same, an older member shall be senior to a younger member.
Note - Seniority of members appointed on purely provisional Civil Writ Petition No.13984 of 1994 -5- **** basis, shall be determined as and when they are regularly appointed keeping in view the date of such regular appointment."
7. Upon a perusal of the above said Rule it goes on to show that the seniority is to be counted from the date of regular appointment and admittedly the services of petitioner were only regularised with effect from 1.4.1985 and, therefore, petitioner should have no grouse that persons appointed in the year 1981 were called for promotion/choice of station. The said persons being senior to the petitioner were rightly called by the respondents as specifically averred by the respondents that Masters/Mistresses appointed upto the year 1981 on regular basis were called for choice of station/promotion and case of the petitioner would be considered for promotion on the basis of his date of regularisation.
8. Argument of the counsel of the petitioner that adhoc service was to be counted alongwith regular service for the purpose of grant of seniority is not liable to be accepted. The Hon'ble Apex court in State of Punjab and others Vs. Ishar Singh and others (2002) 10 SCC 674 and in the State of Punjab and others Vs. Gurdeep Kumar Uppal and others (2003) 11 SCC 732 while placing reliance upon the earlier judgment of the Apex Court in State of Haryana Vs. Haryana Veterinary & AHTS Association and another (2000) 8 SCC 4 has held that the adhoc service rendered cannot be considered for fixation of seniority. In Gurdeep Kumar Uppal's case (supra), the Apex court held as under:-
"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 were considered in the Civil Writ Petition No.13984 of 1994 -6- **** 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 Circular Letter No. 4-15-81 IPP/16047 dated 14-12-1981. 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 & AHTS Assn. Undisputedly the respondents 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 appointee's 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.
6. We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Haryana v. Haryana Veterinary AHTS Assn We are satisfied that the ratio in that case applies to the cases in hand. The Civil Writ Petition No.13984 of 1994 -7- **** resultant position that emerges is that the judgments/orders passed by the High Court holding that ad hoc service is to be included in calculating the period of service for giving the higher scale of pay are unsustainable and has to be vacated. Accordingly, the appeals are allowed and the judgments/orders of the High Court under challenge are set aside."
9. Recently, the Hon'ble Apex Court in Punjab State Electricity Board and another Vs. Jagjiwan Ram and another 2009 (3) SCC 661 while relying upon the said aforesaid judgment held that benefit of time bound promotional increments prior to the completion of 9/6/23 of regular service was mandatory and the condition for the grant of time bound promotion scale. It was held that temporary period of service as temporary, adhoc or work charge cannot be counted for extending the benefit of time bound promotional scale.
10. A Division Bench of this Court in State of Punjab Vs. Surjit Kaur 2011 (3) RSJ 699 also held that the period of 8 or 18 years service for the purpose of granting the benefit of Assured Career Progression Scheme (ACP) is to be counted after excluding the adhoc service.
11. Accordingly, keeping in view the aforesaid principle, the present writ petition is dismissed.
(G.S.SANDHAWALIA) JUDGE 31.8.2012 Pka