Jharkhand High Court
Dr. Vijay Kumar vs State Of Jharkhand on 26 November, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S). No.2027 of 2017
1.Dr. Vijay Kumar, son of Shri Bhagirath Prasad, Resident of
Block Campus, Patratu, P.O. & P.S. Patratu, District-Ramgarh.
2.Dr. Anil Kumar son of late Raghunandan Prasad, Resident of C/o
Shri Anirudh Kumar, Kanhari Road, New Colony, Dipu Gadha,
P.O. Hazaribagh, P.S. Sadar, District-Hazaribagh.
3.Dr. Radheshyam Roy, son of Shri Umesh Chandra Roy, Resident
of Guruvatika, Kusum Vihar, Road No.7, P.O. Ranchi University,
P.S. Bariatu, District-Ranchi
4.Dr. Ghanshyam Prasad, son of late Rajendra Prasad, Resident of
Bypass Road, Redma, P.O. Redma, P.S-Daltonganj, District-
Palamu.
5.Dr. Upendra Kumar Singh, son of late Ram Rup Singh, Resident
of Suresh Colony Lower, P.O. & P.S. Hazaribagh, District-
Hazaribagh.
6.Dr. Md. Sohail Khan, son of Md. Kafil Khan, Resident of Upper
Bazar, Govindpur, Gaydehra Masjid, P.O. & P.S-Govindpur,
District-Dhanbad.
7. Dr. Narendra Singh, son of Sri Prahalad Singh, C/o Sri
Yogendra Singh, Stadium Road, Saraikella, P.O. & P.S. Saraikella,
District-Saraikella-Kharsawa.
8.Dr. Mithilesh Kumar Gupta, son of Shri Kishori Lal, Resident of
Village Gauriya Karma, P.O. Barhi, P.S.Gauriya Karma, District-
Hazaribagh. .......... Petitioners
Versus
1.State of Jharkhand
2.Secretary, Agriculture, Animal Husbandry and Cooperative
Department, Govt. of Jharkhand, having its office at Nepal House,
P.O. & P.S-Doranda, District-Ranchi.
3.Director, Agriculture, Animal Husbandry and Cooperative
Department, Govt. of Jharkhand, having its office at Nepal House,
P.O. & P.S-Doranda, District-Ranchi.
........ Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioners : Mr. Rajendra Krishna, Advocate : Mr. Utkarsh Krishna, Advocate For the State : Mr. Munna Lal Yadav, S.C (L & C)III For the Intervener : Mr. Rahul Kumar, Advocate
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1CAV on:21st August, 2024 Delivered on 26.11.2024 This writ petition has been filed on behalf of the petitioners for grant of the following reliefs:-
"(i) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in the nature of mandamus commanding upon the respondents to count the services of the petitioners in between September 1987 to October 1989 for the purpose of deciding their seniority as well as all other consequential benefits like Assured Career Progression Scheme.
AND
(ii) For issuance of an appropriate
writ(s)/order(s)/direction(s) or a writ in the nature of mandamus commanding upon the respondents to shift the date of promotion under ACP scheme considering the date of appointment in the year 1987 and not 1989 as considered for the present and accordingly the 1 st ACP has been granted with effect from 2001 and the 2nd MACP was granted with effect from 2009.
AND
(iii) For issuance of an appropriate
writ(s)/order(s)/direction(s) or a writ in the nature of mandamus commanding upon the respondents to shift the seniority of the petitioners according to seniority list considering the services rendered by the petitioners on adhoc/temporary basis for the total span of service rendered by them.
AND
(iv) For issuance of an appropriate
writ(s)/order(s)/direction(s) or a writ in the nature of 2 mandamus commanding upon the respondents to shift the date of promotion of the petitioners for 1 st ACP with effect from different dates in the year 1987 from 1989; and further shift the date of promotion of the petitioner under MACP with effect from different dates in the year 2007 from 2009
(v) And for other ancillary reliefs."
2. Heard Mr. Rajendra Krishna, learned counsel for the petitioner, Mr. Munna Lal Yadav, learned S.C (L & C) III for the State and Mr. Rahul Kumar, learned counsel for the Interveners.
3. Learned counsel for the petitioners has submitted that the services of the petitioners may be counted between September, 1987 to October, 1989 for the purpose of deciding their seniority as well as other consequential benefits ACP, MACP etc. It is submitted that the respondents may be directed to shift the date of promotion of the petitioners under ACP Scheme from the date of their respective appointment and not from the year 1989 which was considered for 1st ACP with effect from 2001 and 2nd MACP with effect from 2009. It is submitted that the petitioners were initially appointed on account of policy decision taken by the erstwhile Government of Bihar vide Notification dated 28.08.1987 on the post of Veterinary Doctors on temporary basis for three months in Bihar Animal Husbandry Services, Class-II (Basic Grade) and all the petitioners joined accordingly by their respective Regional Directors vide Annexure-2, Annexure-3, Annexure-4 and Annexure-5 respectively i.e. Notifications dated 10.09.1987, 03.09.1987, 24.09.1987, 25.09.1987 and 24.09.1987 respectively. Thereafter their services were extended vide Notifications dated 05.12.1987, 21.06.1988 and 17.01.1989 for a period of further six months or on the recommendation of Bihar Public 3 Service Commission (hereinafter in short „BPSC‟). Thereafter they were selected alongwith several other persons by the BPSC in the erstwhile State of Bihar vide Notification dated 24.10.1989 as contained in Annexure-7. It is submitted that petitioners have been placed at Serial No.22, 17, 11, 19, 15, 4, 28 and 6 respectively in the said Notification dated 24.10.1989. Thereafter the petitioners were granted 1st ACP vide Notification dated 01.03.2005 issued by the Animal Husbandry and Fisheries Department, Government of Jharkhand (Annexure-11) with effect from the year 2001 on completion of their 12/24 years of regular service and they were also granted 2nd MACP with effect from 2009.
4. However, in the meantime, one Dr. Vikash Kumar Srivastava who was also appointed along with these writ petitioners vide Notification dated 24.10.1989 at Serial No.66 had preferred writ petition bearing CWJC No.15828 of 2006 before Patna High Court for counting his services from 10.09.1987 to 25.10.1989 for the purpose of ACP and other consequential benefits and the said CWJC No.15828 of 2006 was allowed on 17.09.2013 by the Hon‟ble Patna High Court by holding that the ACP of the said petitioner was to be recalculated with effect from 1987 and it was also observed that after receiving recommendation from the BPSC the said writ petitioner-Vikash Kumar Srivastava was made permanent and there was a continuity intended and hence the service tenure of the petitioner (i.e. Vikash Kumar Srivastava) would be counted from the date of initial appointment. It is further submitted that the above judgment was challenged by the State of Bihar by filing LPA No.1422 of 2014 which was dismissed on 27.01.2015 by the Hon‟ble Patna High Court by upholding the order dated 17.09.2013 passed by the learned Single Judge of the Patna High Court. However, he is not aware as to whether against 4 the said order of LPA, the State of Bihar has preferred any appeal before the Hon‟ble Supreme Court or not. It is submitted that the petitioners had filed their representations on 30.04.2016 and on subsequent dates as contained in Annexure-10 series. It is submitted that the petitioners are the similarly situated to said Vikash Kumar Srivastava who has been given the benefit of temporary service for the period 10.09.1987 to 24.10.1989 and as such the petitioners are entitled for seniority with effect from their respective date of initial joining i.e. Notifications dated 10.09.1987, 03.09.1987, 23.09.1987, 25.09.1987 and 24.09.1987 respectively.
5. In support of his contention, learned counsel for the petitioners has placed reliance upon the order of the Patna High Court passed vide order dated 17.09.2013 in CWJC No.15828 of 2006 (Annexure-8) and also the order dated 27.01.2015 passed in L.P.A No.1422 of 2014.
6. Learned counsel for the petitioners has further relied upon the judgment reported in (1990) 2 SCC 715 (Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and Others ) at para-47(B) and the judgment reported in (2022) 14 SCC 187 (Ms. X vs. Registrar General, High Court of Madhya Pradesh and Anr.) at para-99 and hence the writ petition may be allowed.
7. On the other hand, learned counsel for the State has submitted that the writ petition filed by the petitioners is devoid of merit and the petitioners are not entitled to any relief as prayed for. It is submitted that the petitioners were appointed on ad hoc basis earlier prior to their regular appointment and as such the past services rendered by them on ad hoc post cannot be treated for the purpose of their seniority and also for the purpose of grant of 1 st 5 ACP and the 2nd MACP and as such the date of promotion cannot be shifted from the date of their initial appointment.
8. Learned S.C (L & C) III appearing for the State has placed reliance upon Para-8 and 9 of the supplementary counter affidavit dated 05.01.2018 and also Annexure-A and Annexure-B filed in the said counter affidavit. Annexure-A is the Notification vide Memo No.3/R.1-105/71/72/86 Ni dated 15.07.1981 says that the past services cannot be counted for the purpose of any monetary benefit and seniority. It is submitted that Annexure-B is the Notification dated 14.08.2002 issued by the Finance Department, Government of Jharkhand and Clause-XVI of the said resolution dated 14.08.2002 says that ACP can be granted on completion of 12/24 years of service on regular appointment in the regular pay scale and hence the earlier services cannot be taken into consideration.
9. It is submitted that supplementary counter affidavit has been filed on 22.08.2019 in compliance of the order dated 05.04.2018 passed by the Co-ordinate Bench of this Court and it has been pointed out at Para-11 that past and previous services cannot be taken into consideration and hence this writ petition may be dismissed.
10. Learned counsel for the Interveners has submitted that the prayer made by the writ petitioners for grant of seniority is not tenable. It is further submitted that this writ petition has been filed for claim of seniority and for shifting the date of grant of ACP after lapse of more than 20 years. It is submitted that Notification vide Memo No.952 dated 24.10.1989 the interveners and the writ petitioners were appointed on the recommendation of BPSC by the State Government and the Intervener petitioners namely Dr. Narendra Kumar Jha and Dr. Ajay Kumar Yadav are at Serial No.7 and 6 respectively and hence the writ petitioners have been placed 6 much below the Intervener petitioners and they were at Serial 22, 17, 11, 19, 15, 4, 28 and 6 respectively in the Notification dated 24.10.1989 i.e. much junior to the Intervener petitioners. Therefore, the writ petition is not maintainable as neither the Interveners nor the persons above the petitioners have been impleaded as parties in this case. It is further submitted that even the Hon‟ble Supreme Court has held in the case of Debabrata Dash and Anr. vs. Jatindra Prasad Das and Ors. reported in (2013) 3 SCC 658 that seniority should not be disturbed after lapse of several years as it will unsettle the settled things.
11. It is further submitted that even the writ petitioners were granted 1st ACP vide Notification dated 01.03.2005 with effect from 2001 i.e. after completion of 12 years of regular service in regular pay scale and they were granted 2nd MACP on with effect from 2009 after completion of 24 years of service and after taking the benefits of 1st ACP and 2nd MACP without any protest the present writ petition has been filed after delay of several years and as such this writ petition may be dismissed.
12. Learned counsel for the Intervener petitioners has relied upon the judgment reported in (1990) 2 SCC 715 (Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and Others ) (at para-13 and 47(A)) and the judgment reported in (2000) 8 SCC 4 (State of Haryana vs. Haryana Veterinary and Ahts Association and Anr.).
13. It is submitted that the petitioners have been placed in regular pay scale since the year 1989 vide Notification dated 28.10.1989 and as such they were granted ACP and MACP only after completion of 12 years and 24 years of service in regular pay scale on regular basis. Hence the shifting of date of appointment from the year 24.10.1989 to 1987 the entire seniority will be disturbed 7 and the entire monetary benefit will affect the interveners as they are senior to the writ petitioners. It is submitted that even the Resolution dated 14.08.2002, as contained in Annexure-E to their counter affidavit the Finance Department of the State Government has laid down that the ACP and MACP will be granted to an employee on completion of 12 years/24 years of regular service in a regular pay scale vide Clause-XVI. Thus, in view of the above, there is no merit in this writ petition so far as Interveners are concerned and as such this writ petition may be dismissed.
14. It is further submitted that the duties done by the writ petitioners at the time of their appointment in the year 1987 cannot be counted for the purpose of seniority as they were appointed on ad-hoc basis by the erstwhile State Government i.e. State of Bihar and which cannot be given effect to.
15. Perused the records of this case and the counter affidavit dated 15.12.2017 and the supplementary counter affidavit dated 05.01.2018 and 22.08.2019 filed on behalf of the State and the Intervention application filed on behalf of the Intervener Petitioners and considered the submission of both the sides.
16. It transpires that the writ petitioners were appointed firstly on different dates in the year 1987 by the policy decision of the State of Bihar at the time of flood situation in the State of Bihar.
17. It further appears from the record that the Petitioner No.1-Dr. Vijay Kumar was appointed vide Notification dated 10.09.1987 for three months on ad hoc/temporary basis by the erstwhile State of Bihar (although he had joined on 08.09.1987). Similarly Petitioner No.2-Dr. Anil Kumar was appointed on ad hoc/temporary basis for three months vide letter No.1186 dated 03.09.1987 and Petitioner No.3-Dr. Radheshyam Roy was appointed on ad hoc/temporary basis on 24.09.1987 for three months and he had 8 submitted his joining on 10.09.1987. Likewise Petitioner No.4-Dr. Ghanshyam Prasad was appointed on 09.09.1987 as Veterinary Doctor for three months which appears from the letter of joining vide Memo No.726 dated 25.09.1987 whereas Petitioner No.5- Dr. Upendra Kumar Singh had submitted his joining on 16.09.1987 as Veterinary Doctor for three months. Similarly Petitioner No.6-Dr. Md. Sohail Khan had submitted his joining on 01.09.1987 for three months which reveals from the office order dated 24.09.1987 and the Petitioner No.7-Dr. Narendra Singh had also submitted his jointing on 21.09.1987 for three months which appears from the Notification No.156 dated 24.09.1987 and Petitioner No.8-Dr. Mithilesh Kumar Gupta had also joined on 31.08.1987 which appears from the circular issued and the charge report dated 25.10.1989. Joining report of the petitioners has been enclosed as Annexure-2, Annexure-3, Annexure-4 and Annexure-5 series respectively.
18. It further transpires that vide Notification No.10726 dated 05.12.1987 issued by the Director, Animal Husbandry Department, Government of Bihar, Patna, the services of all newly appointed Veterinary Doctors including the writ petitioners, were further extended for the further period of Ninety (90) days and other conditions were allowed to continue.
It was also pointed out that all the concerned Veterinary Doctors will be appointed on regular basis on receipt of receipt of recommendation of BPSC.
19. Thereafter vide Notification dated 21.06.1988 issued by the Director, Animal Husbandry Department, Bihar, Patna the period of all newly appointed Veterinary Doctors was extended for the further period of six (06) months in continuity of Notification No.10726 dated 05.12.1987 and in anticipation of recommendation 9 of BPSC in special circumstances in the interest of work and other conditions were allowed to remain the same.
20. Thereafter again vide Notification dated 17.01.1989 all the newly appointed Veterinary Doctors who were appointed on temporary/ad-hoc basis, had been allowed to continue till 31.12.1988 (though it should be 31.12.1989) in continuation of Notification No.7294 dated 28.08.1987, Notification No.10726 dated 05.12.1987, Notification No.4417 dated 21.06.1988 in anticipation of approval of BPSC in work interest by the erstwhile State of Bihar, Department of Animal Husbandry and Fisheries Department although it was stated that cut-off date will be 31.12.1988 (but it appears to be a typographical error and it can be read as 31.12.1989) because vide Notification /Memo No.5518 dated 29.06.1988 their services were extended, considering special circumstances in work interest and also in anticipation of approval of BPSC for a further period of six(06) months.
21. It further transpires that later on the Government on receiving the letter No.355 dated 10.08.1989 issued by the Bihar Public Service Commission, the State Government had appointed several Veterinary Doctors in Scale-II/Grade-II (original/basic cadre) in the merit list as per their competency and merit which was issued by the Additional Secretary to the erstwhile State of Bihar and they were working till 2017 at the time of filing of the writ petition before this Court.
22. It appears that in the meantime, one of the persons namely Dr. Vikash Kumar Srivastava (since deceased) had filed C.W.J.C No.15828 of 2006 before High Court of Judicature at Patna for adding the period of initial appointment on ad hoc basis with the prayer that his services in between the period 10.09.1987 to 25.10.1989 be counted for the purpose of grant of ACP and further consequential benefits.
1023. It appears from the order dated 17.09.2013 passed by Hon‟ble Patna High Court in C.W.J.C No.15828 of 2006 that the services of the said Vikash Kumar Srivastava had effect of virtual terminating the services of the petitioner and the said petitioner (i.e. Vikash Kumar Srivastava) and others filed a writ petition being CWJC No.1305 of 1989, challenging the correctness of Annexure-9 (i.e. the letter dated 17.01.1989) which has been enclosed as Annexure-6 series at page 53 and status quo was granted by order dated 02.02.1989 by the Hon‟ble Patna High Court.
24. The discrepancy in cut-off date dated 31.12.1988 was noticed by Hon‟ble Patna High Court in CWJC No.15828 of 2006 while passing vide order dated 17.09.2013 and also by the Division Bench of the Hon‟ble Patna High Court in LPA No.1422 of 2014 vide order dated 27.01.2015 and they have come to the conclusion that due to typographical error the cut-off date 31.12.1988 be read as 31.12.1989. Therefore, there is no ambiguity except the typographical error in the cut-off date shown as 31.12.1988 instead of 31.12.1989 and it should be presumed that the ad hoc/temporary appointment of the petitioners were extended till 31.12.1989 right from the Notification dated 28.08.1987, 05.12.1987 and 21.06.1988 respectively and the said notification have been marked as Annexure-6 series in this writ petition.
25. However, the learned counsel appearing on behalf of the petitioners has submitted that during pendency of this case all the writ petitioners have superannuated. The learned counsel for the petitioners further submitted that he is not seeking any claim over the Intervener petitioners rather he is confining his argument to the extent of shifting the date of 1st ACP from the year 1999 instead of the year 2001 and 2nd MACP from the year 2007 instead of 2009.
1126. It further transpires that all the writ petitioners had been appointed on temporary/ad-hoc basis on different dates at the time of flood situation in the entire State of Bihar and their services were extended firstly till 31.12.1987 then in the year 31.06.1988 and then it was extended till 31.12.1988 and further it was extended till 31.12.1989 and they were working in Basic Grade-II cadre during the said period and thus, even if the petitioners were appointed on ad hoc/temporary basis and the said post was a cadre post carrying like regular pay scale and it was also clarified time to time that they will be put in regular service in anticipation of approval of BPSC.
27. It is further evident that even the Interveners have not disputed the appointment of the petitioners made in the year 1987 which was for a period of three months and which was extended time to time till 31.12.1988 as well as 31.12.1989. However, they are aggrieved by the fact that they will become junior to the petitioners if the ad hoc appointment of the petitioners is treated as regular appointment for grant of pensionary benefits and for shifting the date of ACP.
28. The State has filed several counter affidavits in this case. In the first counter affidavit dated 15.12.2017 filed by the State through Under Secretary, it has been stated that final cut-off date of the appointment of the petitioners will be 31.12.1988. It is further contended that the seniority of the persons will be decided on the basis of recommendation of BPSC or selection committee and if anyone has been appointed on ad hoc basis prior to regular appointment then ad hoc appointment period will be counted for seniority purpose.
The State has further relied upon the resolution dated 14.08.2002 issued by the Finance Department, Jharkhand, Ranchi 12 and further contended that benefit of ACP will not be admissible to the personnel who are appointed on the basis of daily wages/casual/ad hoc/contractual/seasonal and muster roll. Therefore, the stand of the State at the time of filing 1 st counter affidavit much emphasis has been given that the petitioners were not eligible for appointment on the basis of their services rendered as ad hoc/temporary basis and also on the ground of resolution dated 14.08.2002 as contained in Annexure-B.
29. However, the State has filed second counter affidavit on 05.01.2018 and has enclosed the photo copy of circular issued vide Memo No.3/R.1-105/71/72/86 dated 15.07.1981 issued by the Appointment Department, Government of Bihar by which it was decided that seniority will be decided according to the merit list on the basis of recommendation of Bihar Public Service Commission or the selection committee and the period of ad hoc appointment will not be counted for seniority purpose and the said Notification has been marked as Annexure-A. It was further pointed out that vide Para-XVI of resolution dated 14.08.2002 issued by the Finance Department has laid down a condition that benefit of this scheme (ACP) will not be admissible to the personnels, who are appointed on the basis of daily wages/casual/ad hoc/contractual/seasonal and muster roll and has enclosed the resolution dated 14.08.2002 as Annexure-B and had prayed for dismissal of the instant writ petition.
30. In the meantime, one Intervener Petition bearing I.A. No.312 of 2017 was filed on 10.01.2018 for adding Dr. Narendra Kumar Jha and Dr. Ajay Kumar Yadav as proposed Intervener petitioner/Respondent No.4 and 5.
31. It appears that a Co-ordinate Bench of this Court (Hon‟ble Mr. Justice Dr. S.N. Pathak) vide order dated 02.01.2018 allowed 13 the Interveners‟ Application by giving appropriate number. However, it appears from the record that the Intervention Application i.e. I.A. No.312 of 2017 was filed on 10.01.2018 though it was affidavited on 11.12.2017 which shows that Intervener Petition was allowed on 02.01.2018 (which appears to be a typographical/clerical error in the date) because the said Intervention Application was filed on 10.01.2018.
32. It further reveals that the said Co-ordinate Bench (Justice Dr. S.N. Pathak) had framed certain questions of law on 05.04.2018 and had directed the State to file counter affidavit and it was particularly pointed out that whether the decision of Hon‟ble Patna High Court can be termed as per-incurium as decision of Constitutional Bench of Hon‟ble Apex Court in the case of Direct Recruit Class-II Engineering Officers‟ Assn. Vs. State of Maharashtra reported in 1990 (2) SCC 715 has not been considered particularly Para 47 A of the said judgment.
33. At this stage, it will be relevant to refer Clause-XVI of resolution dated 14.08.2002 issued by the Finance Department, Government of Jharkhand, Ranchi, which has been marked as Annexure-B in the counter affidavit dated 05.01.2018 filed by the State and also enclosed as Annexure-E in the counter affidavit dated 12.02.2018 filed by the Intervener Petitioners, reads as under:-
"(xvi) ,0lh0ih0 ;kstuk ds vUrxZr dsoy fu;fer lsok dh x.kuk dh tk;sxhA dk;ZHkkfjr] vkdfLed] rnFkZ] lafonk] ekSleh] ekLVj jkSy vkfn ds vk/kkj ij fu;qDr dfeZ;ksa dks bl ;kstuk dk ykHk vuqe kU;
ugha gksxk !"
34. Here, it would also be relevant to refer Rule 61, 62 and 63 of Jharkhand Pension Rules, which is pari materia to Rule 61, 62 and 14 63 of the Bihar Pension Rules and which was adopted by State of Jharkhand, which reads as under:-
"61. Service does not qualify unless the Government servant holds substantively a post on a permanent establishment.
62. An establishment, the duties of which are not continuous, but are limited to certain fixed period in each year, is not temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during which the establishment is not employed does not apply to a Government servant who was not on actual duty when the establishment was discharged, after completion of its work or to a Government servant who was not an actual duty on the first day on which the establishment was again re- employed.
63. A Government servant transferred from a temporary to a permanent appointment can count his service in the temporary post, if though at first created experimentally or temporarily, it eventually becomes permanent."
35. Thereafter the matter was heard on several dates by the different Co-ordinate Bench of this Court time to time. Finally the matter came before this Court.
36. It further transpires that the Hon‟ble Patna High Court had allowed the writ petition C.W.J.C No.15828 of 2006 filed by Vikash Kumar Srivastava and which was later on pursued by Smt. Pushpa Sinha and Vaibhav Vishal (minor son) on account of death of original writ petitioner and the writ petition was allowed vide order dated 17.09.2013 with the following observations:-
"Under the aforesaid facts, Sri Rajendra Prasad Singh, learned Senior Counsel appearing for the petitioner submits that this temporary service of the original writ petitioner as between the period 10th of September, 1987 to 25th of October, 1989 be counted for the purposes of reckoning the service tenure for the grant of A.C.P. as well as the death- cum-retiral dues.15
On the other hand, learned counsel for the State submits that the service of the petitioner was purely temporary and cannot be reckoned as regular service.
Having heard the parties and considered the matter, in my view, to ascertain the nature of service prior to petitioner being substantively appointed, if we refer to the appointment letter of the petitioner and others, who were appointed temporarily for a fixed period awaiting recommendation of the B.P.S.C., it seems that B.P.S.C. was delaying the matter and, therefore, from time to time the same has to be extended. Mr. Singh, learned Senior Counsel further submitted that Annexure-9 obviously intended to extend the service of the petitioner up to 31st of December, 1989 because this letter itself was issued on 17th of January, 1989 and reading as extended for a period only up to 31.12.1988 would be misnomer because that would make no sense. The effect of that if so read, the effect of 31.12.1988 would be letter of termination and thus, the reference to recommendation of B.P.S.C. etc. would be of no relevance. In other words, he submits that it is merely a typographical error as the letter was being typed in early January, 1988 and because of typographical error it was typed as 31.12.1988 and escape attention.
Be that as it may, it appears to be correct but this Court will not proceed on the basis because this letter was challenged in a writ petition before this Court and this Court granted status quo, as noted earlier. While status quo operating, petitioner was permanently appointed in the cadre recommendation of B.P.S.C., which is Annexure-12 to the writ petition. Thus, there was a continuity maintained from the very initial temporary appointment to the permanent appointment. In my view, Rules-63 of the Bihar Pension Rules and Government decisions thereunder clearly in fact states that where a person has worked or has been appointed in temporary capacity in Government service, which service is then made permanent, the period served under temporary service would be counted towards service tenure and, consequently, would be counted for the purpose of calculating retiral dues. In my view, the communication of the Government is clear and stands substantiated by the facts of this case. The temporary appointment was made awaiting recommendation from B.P.S.C. It was extended from time to time awaiting recommendation of B.P.S.C. Once recommendation was received, it was made permanent and, thus, there was a continuity intended. That being so, the service tenure of 16 petitioner would be counted from the date of initial temporary appointment. There being no break whatsoever in regard to the initial period of the year 1989, which is sought to be covered by typographical mistake. All I can say is that the Court having been granted status quo, in the period of status quo petitioner was permanently appointed that period would also be treated as period in service as has been duly certified by the Regional Director vide Annexure-11. That being so, the two years period prior to petitioner‟s appointment in regular basis accordingly, grant of A.C.P. has to be recalculated. As petitioner died in harness and his death-cum-retiral dues including gratuity has been counted taking into account the period aforesaid. As the writ petition is now being pursued by his widow wife, it is expected that the Department would take a sympathetic view of the matter and work out the consequences of this judgment at an early date but not later than two months from the date of production of a copy of this order before the Director, Animal Husbandry, Government of Bihar, Patna.
With these observations and directions, this writ petition stands disposed of."
37. It further transpires that the State had preferred L.P.A No.1422 of 2014 against the order dated 17.09.2013 passed in C.W.J.C No.15828 of 2006 and the said L.P.A No.1422 of 2014 was dismissed on 27.01.2015 by the Hon‟ble Division Bench of the Patna High Court and para-7 to 18 read as follows:-
"7. Let us, first, consider the submission that the notification, dated 17.01.1989, has to be read as having extended the services of the original writ petitioner till 31.12.1988 and not till 31.12.1989 and consequently, the cut off date of extension was 31.12.1988 and not 31.12.1989.
8. As construction of the notification, dated 17.01.1989, has fallen in controversy, we reproduce hereinbelow the notification, dated 17.01.1989:
fcgkj ljdkj] i'kqikyu ,oa eRl; foHkkx] ¼i'kqikyu½ iVuk]& 15] fnukad& 17 tuojh] 1989 11 vf/klwpuk 11 17 la[;k&1LFkk¼4½ &108@88i0ik0@340@ funs'kky; dhvf/klwpuk la[;k& 7294] fnukad 28&8&87] 10726] fnukad 5&12&87 ,oa 4417] fnukad 21&6&88 ds vuqØe esa rnFkZ :i esa uofu;qDr i'kqfpfdRldksa dh fu;qfDr dh vof/k dks dk;Zfgr esa fcgkj yksd lsok vk;ksx dh vuq'kalk dh izR;k'kk esa fnukad 31&12&88 rd foLrkfjr dh tkrh gSA vU; 'krsZa ;Fkkor~ jgsxa hA fnukad 31&12&88 dVvkSQ MsV gksxkA blds ckn foLrkfjr ugha fd;k tk;sxkA g0@vo/ks'k dqekj flag] ljdkj ds la;qDr lfpoA Kki la[;k&1LFkk ¼4½ &108@88 i0ik0 @341@ iVuk& 15] fnukad 17 tuojh] 1989 izfrfyfi foRr foHkkx ¼nkok fu/kkZj.k dks'kkax½ fuekZ.k Hkou] iVuk@lEcfU/kr dks'kkxkj inkf/kdkfj;ks]a dks lwpukFkZ iszf'krA ljdkj ds la;qDr lfpo Kki la[;k& 341 iVuk& 15] fnukad 17 tuojh] 1989 izfrfyfi lHkh {ks=h; funs'kd] i'kqikyu@lHkh ftyk i'kqikyu inkf/kdkjh@lHkh lEcfU/kr inkf/kdkfj;ks]a dks lwpukFkZ ,oa vko';d dkjZokbZ gsrq izsf'krA lEcfU/kr fu;a=.k inkf/kdkjh dks funsZ'k fn;k tkrk gS fd os vius v/khu dk;Zjr i'kqfpfdRldksa dks vko';d funsZ'k ns nsAa ljdkj ds la;qDr lfpoA
9. On a bare reading of the notification, dated 17.01.1989, what becomes transparent is that notification was on 17.01.1989 and if the contents of the notification, dated 17.01.1989, are literally interpreted, it would appear as if the Government, by the notification, dated 17.01.1989, had extended the services of Dr. Vikash Kumar Srivastava (since deceased) from 27.06.1988 to 31.12.1989, 31.12.1988 being the last cut off dated making it clear that thereafter, no further extension would be allowed; whereas the contents of the notification, if read carefully, would clearly disclose that the notification is prospective in nature and, therefore, the learned Single Judge was wholly correct in holding that the date ‟31.12.1988‟ as the cut off date has been incorrectly typed and what was intended by the notification, dated 17.01.1989, was that the cut off date would 31.2.1989 or else, the notification carried no meaning. We completely agree with the view so taken by the learned Single Judge and see no reason to construe the notification in any other manner. The construction of the notification, dated 17.01.1989, by the learned Single Judge, carries the spirit of the notification and it is in this light that one was required to read the notification or else, reading of the notification would be wholly mechanical; whereas no judicial function can be performed mechanically.18
10. Coupled with the above, we also find that the cut off date of 31.12.1988 was prescribed awaiting approval of the Commission and as the notification, dated 17.01.1989, had the effect, virtually, of a letter terminating the services of the deceased writ petitioner and others, they all filed the writ petition, which, as already indicated above, gave rise to CWJC No.1305 of 1989 and by order, dated 02.02.1989, status quo was directed to be maintained and, eventually, on the concurrence received, on 24.10.1989, from the Commission, the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was formally appointed to the cadre of Bihar Animal Husbandry Services Class-II with effect from assumption of the charge of his services. The writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was, thus, appointed, in accordance with law, in the cadre of Bihar Animal Husbandry Services Class-II.
11. In effect, the legality of the appointment of Dr. Vikash Kumr Srivastava (since deceased) was neither questioned in the writ petition nor is it questioned in the present appeal.
12. The only question, therefore, is as to whether the period of service, which the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), had rendered from 10.09.1987 and 24.10.1989, can be counted for the purpose of reckoning this period to grant Assured Career Progression as well as death-
cum-retiral dues. Since this question needs to be answered in the light of the provisions of Rule 63 of Bihar Pension Rules, 1950, Rule 63 is quoted below.
"63. A Government servant transferred from a temporary to a permanent appointment can count his service, in the temporary post, if through at first created experimentally or temporarily, it eventually becomes permanent."
13. On cautious reading of Rule 63 of Bihar Pension Rules, 1950, it becomes clear that a Government servant, when transferred from a temporary to a permanent appointment, the services rendered by him, on temporary appointment, will be counted as the services rendered by him on permanent appointment.
14. In the case at hand, the appointment of the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was in the scale of the Veterinary Doctor and, hence, though the post was not formally created, the fact remains that the nature of his appointment showed that the appointment was against a temporary post; more so, when it has nowhere been so contended 19 in their counter affidavit, by the respondents. Far from this, what was contended by the appellants in the counter affidavit was that the appointment of the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was on ad hoc basis till 01.12.1988. The appointment made pending approval of the Commission cannot be said to be an appointment against non-existent post.
15. We, therefore, in the facts and attending circumstances of the present case, do not see any infirmity, legal or factual, in the conclusions reached by the learned Single Judge. Resultantly, appointment of the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), ought to be, in the facts and attending circumstances of the present case, treated as continuous and shall, therefore, be counted for the purpose of granting Assured Career Progression and also to make available to the present respondents, on the death of the original writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), death- cum-retiral benefits.
16. Situated thus, we see no reason to interfere with the order under appeal.
17. We may, however, hasten to add that as far as the decision, in the present case, is in the context of the facts of the present case that the appointment of Dr. Vikash Kumar Srivastava (since deceased) was never contended, in the writ petition, to have been made against non-existent or non sanctioned post. This plea could not have, in fact, been allowed to be raised in the present appeal, when there is no foundation for such a plea in the counter affidavit filed by the respondents in the writ petition.
18. With the above observations and directions, this appeal stands dismissed."
38. It transpires that after the order dated 27.01.2015 passed in L.P.A. No.1422 of 2014 the writ petitioners had moved before the Animal Husbandry Department, Jharkhand for calculating the period of ACP and also for grant of seniority and other ancillary reliefs on various dates but no action was taken.
39. It is evident from the record and documents filed on behalf of both the sides that the petitioners were appointed on temporary/ad-hoc basis on different dates in the year 1987 as has 20 been mentioned earlier and their services were extended time to time in anticipation of approval of B.P.S.C. It is pertinent to note here that all the writ petitioners were appointed in basic grade in pay scale of Rs.940 to 1500/- though they were appointed on temporary/ad hoc basis. But the said pay scale continued at the time of extension of their tenure of services in anticipation of approval of BPSC.
After bifurcation of the State of Jharkhand, counterparts of the writ petitioners remained in Patna whereas the present writ petitioners have been allocated the cadre of Jharkhand and they were serving here. The petitioners are the similarly situated persons to their counterparts, who had filed writ application before the Hon‟ble Patna High Court by filing C.W.J.C No.15828 of 2006.
40. From conjoint reading of Rule 61, 62 and 63, it is evident that past services rendered by the writ petitioners on ad hoc basis is from the date of appointment, meaning thereby that temporary period has to be counted as his initial date of appointment, also apart from the regular date of appointment i.e. the Notification dated 25.10.1989. Therefore, the initial ad hoc/temporary appointment of the petitioners made on 28.08.1987, 05.12.1987 and 21.06.1988 respectively will be treated as the initial dated of appointment for the purpose of pensionary benefits.
41. The above proposition of law has been decided by the learned Single Judge in C.W.J.C No.15828 of 2006 on 17.09.2013 and which was affirmed in L.P.A. No.1422 of 2014 on 27.01.2015
42. No doubt, the petitioners cannot claim seniority over the Intervener petitioners or any other persons in view of the fact that they have raised the issue of seniority after lapse of 27 years and 21 this will unsettle the things which are already settled and this may cause undue hardship to the persons who are/were in job.
43. Apart from this, it is further evident that even the writ petitioners have not made the other persons as party respondents in this case as who rank above to them in the merit list in the light of the Notification dated 24.10.1989 as contained in Annexure-7.
44. It has been held by Hon‟ble Supreme Court in the case of Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and Others reported in (1990) 2 SCC 715 at Para- 47 as follows:-
"Para-47:-To sum up, we hold that:
(A) 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. 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 post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regulalrisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the 22 appointees from the other source inducted in the service at a later date.
(F) where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No.1327 of 1982, we further hold:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
45. It has been held by Hon‟ble Supreme Court in the case of Debabrata Dash and Anr. vs. Jatindra Prasad Das and Ors. reported in (2013) 3 SCC 658 at Para nos. 37, 41, 42, 43, 45 and 46 as follows:-
"Para-37:- The Division Bench committed two fundamental errors, one, in holding that the promotion of the writ petitioner on 5-1-2002 as Additional District Judge is under the 1963 Rules and two, that the existence of substantive vacancy in the Senior Branch Cadre of Superior Judicial Service on 5-1-2002 or for that matter 26-4-2002 is wholly academic. The Division Bench overlooked the true scope of Rules 7, 8 and 9 of the 1963 23 Rules. In the absence of vacancy in the Senior Branch Cadre of service to be filled up by promotion on the relevant date, no promotion could have been accorded on ad hoc basis or otherwise under the 1963 Rules.
Para-41:- A five-Judge Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] was concerned with a question of seniority in service between the direct recruits and promotees amongst Deputy Engineers in the State of Maharashtra. This Court considered previous decisions of this Court, including S.B. Patwardhan v. State of Maharashtra [(1977) 3 SCC 399 : 1977 SCC (L&S) 391] and Baleshwar Dass v. State of U.P. [(1980) 4 SCC 226 : 1980 SCC (L&S) 531] and in para 47 of the Report summed up the legal position. Clauses (A), (B) and (C) of para 47 are relevant for the present purpose which read as follows: (Direct Recruit Class II Engg. Officers' Assn. [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] , SCC p. 745, para 47) "(A) 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.
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 stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly."
The essence of direction in Clause (A) is that the seniority of an appointee has to be counted from the date of his appointment and not according to the date of his confirmation once a recruitee is appointed to a post according to the rules. In other words, where initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The writ petitioner's appointment as an ad hoc Additional District Judge is not traceable to the 1963 Rules. The simple reason leading to this consequence is that there was no vacancy available which was to be filled up by 24 promotion on that date in the Superior Judicial Service (Senior Branch).
Para-42:- In Rudra Kumar Sain [(2000) 8 SCC 25 : 2000 SCC (L&S) 1055] a five-Judge Bench of this Court was again concerned with the inter se seniority between the promotees and direct recruits in the Delhi Higher Judicial Service. The contention was whether the guidelines and directions given by this Court in O.P. Singla [(1984) 4 SCC 450 : 1984 SCC (L&S) 657] have been followed or not. The Court considered the 3 terms "ad hoc", "stopgap" and "fortuitous" in the context of the service jurisprudence and in para 20 of the Report held as under: (Rudra Kumar Sain case [(2000) 8 SCC 25 : 2000 SCC (L&S) 1055] , SCC p. 45) "20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be „stopgap or fortuitous or purely ad hoc‟. In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be „fortuitous/ad hoc/stopgap‟ are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous."
The Division Bench in the impugned order [Jatindra Prasad Das v. State of Orissa, WP (C) No. 21449 of 2011, decided on 15-11-2011 (Ori)] has quoted the above paragraph from Rudra Kumar Sain [(2000) 8 SCC 25 : 2000 SCC (L&S) 1055] but applied it wrongly.
Para-43:- In Brij Mohan Lal (1) [(2002) 5 SCC 1 : 2002 SCC (L&S) 615] a three-Judge Bench of this Court, inter alia, considered the Fast Track Courts Scheme. In para 10 of the judgment, this Court gave various directions. Direction 14 in that paragraph is relevant which can be paraphrased as follows: (SCC p. 10)
(i) No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme.
(ii) The service rendered in the Fast Track Courts will be deemed as service rendered in the parent cadre.
(iii) In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track 25 Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.
Para-45:- In Brij Mohan Lal (2) [(2012) 6 SCC 502 : (2012) 2 SCC (L&S) 177] , inter alia, the controversy centred around the closure of Fast Track Courts Scheme and the appointment of retired District and Sessions Judges as ad hoc Judges of the Fast Track Courts. In one of the writ petitions filed before this Court, the relief was intended to ensure that only the members of the Bar were appointed by direct recruitment to the post of ad hoc District and Sessions Judges under the Fast Track Courts Scheme. The Court considered the directions given by this Court in Brij Mohan Lal (1) [(2002) 5 SCC 1 : 2002 SCC (L&S) 615] . The Court observed in Brij Mohan Lal (2) [(2012) 6 SCC 502 : (2012) 2 SCC (L&S) 177] , that this Court had foreseen the possibility of the closure of the Fast Track Courts Scheme. The Court noted the directions given in Brij Mohan Lal (1) [(2002) 5 SCC 1 : 2002 SCC (L&S) 615] , inter alia, in the following manner: (SCC p. 523, para 7) "7. ... that the service in FTCs will be deemed as service of the promoted judicial officers rendered in the parent cadre. However, no right would accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for regular promotion on the basis of such appointment. For direct recruits, continuation in service will be dependent on review by the High Court and there could be possibility of absorption in the regular vacancy if their performance was found to be satisfactory."
Para-46:- In Brij Mohan Lal (2) [(2012) 6 SCC 502 : (2012) 2 SCC (L&S) 177] this Court with reference to the Superior Judicial Service in the State of Orissa, noted in para 171 of the Report thus: (SCC p. 567) "171. Similarly, we also find no merit in the contention that this Court should quash the advertisement issued by the State of Orissa for making selections to the Orissa Higher Judicial Services on the basis of the claims for regularisation of the petitioners against such posts. There are two different sets of Rules, applicable in different situations, to these two different classes of officers and further they are governed by different conditions of service. They cannot be placed on a par. The process of their appointments is distinct and different. These petitioners have no right to the post. Thus, it would neither be permissible nor proper for the Court to halt the regular process of selection on the plea that these petitioners have a right to be absorbed against the posts in the regular cadre."
26Then, in para 176 of the Report, the Court observed that the Fast Track Court Judges were appointed under a separate set of rules than the rules governing the regular appointment to the State Higher Judicial Service. The Court noted that while appointing Fast Track Court Judges, it was clearly stipulated that such appointments would be ad hoc and temporary and that the appointees shall not derive any benefit from such appointments."
46. It has been held by Hon‟ble Supreme Court in the case of State of Haryana vs. Haryana Veterinary & AHTS Association and Anr. reported in (2000) 8 SCC 4 at Para nos. 3 and 15 as follows:-
"Para-3:- In these batch of appeals filed by the State of Haryana, the question for consideration is, the services rendered by an ad hoc appointee on the basis of appointment made dehors the Recruitment Rules whether can be counted for earning the benefits of higher scale of pay under the government memorandum, such appointees on being regularly appointed in accordance with the Recruitment Rules at a later point of time. Different appeals concern with the appointments made under the different departments of the State of Haryana. In all these appeals the Full Bench decision in Rakesh Kumar case has been followed and, therefore, we have chosen to deal with the appeal relating to R.K. Singla (Civil Appeal No. 5192 of 1997).
Para-15:- A combined reading of the aforesaid provisions of the Recruitment Rules puts the controversy beyond any doubt and the only conclusion which could be drawn from the aforesaid Rules is that the services rendered either on an ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay or of the selection grade under the government memorandum dated 2-6- 1989 and 16-5-1990, and therefore, the majority judgment of the High Court must be held to be contrary to the aforesaid provisions of the Recruitment Rules, consequently cannot be sustained. The initial letter of appointment dated 6-12-1979 pursuance to which respondent Rakesh Kumar joined as an Assistant Engineer on an ad hoc basis in 1980 was also placed before us. The said appointment letter unequivocally indicates that the offer of appointment as Assistant Engineer was on ad 27 hoc basis and clauses 1 to 4 of the said letter further provides that the appointment will be on an ad hoc basis for a period of 6 months from the date of joining and the salary was a fixed salary of Rs 400 p.m. in the scale of Rs 400 to Rs 1100 and the services were liable to be terminated without any notice and at any time without assigning any reason and that the appointment will not enable the appointee any seniority or any other benefit under the Service Rules for the time being in force and will not count towards increment in the time scale. In view of the aforesaid stipulations in the offer of appointment itself we really fail to understand as to how the aforesaid period of service rendered on ad hoc basis can be held to be service on regular basis. The conclusion of the High Court is contrary to the very terms and conditions stipulated in the offer of appointment and, therefore, the same cannot be sustained. The regular letter of appointment dated 29-1-1982 in favour of Rakesh Kumar was also produced before us and that letter indicates that the respondent Rakesh Kumar along with others had applied to the Secretary, Haryana Public Service Commission for being appointed as an Assistant Engineer and the Service Commission after selecting the number of persons prepared a list and appointment letters were issued by the Government from the said list on the basis of the merit position of different candidates. Thus the appointment of respondent Rakesh Kumar was a fresh appointment in accordance with the statutory rules after the Public Service Commission adjudged their suitability and the regular service of the respondent Rakesh Kumar must be counted from the date he joined the post pursuant to the offer of appointment dated 29-1-1982 and the prior service rendered by him on ad hoc basis cannot be held to be regular service nor can it be tagged on to the later service for earning the benefit under the government circular dated 2- 6-1989 as well as the clarificatory circular dated 16-5-1990. The conclusion of the majority judgment of the High Court, therefore, is wholly erroneous and cannot be sustained."
47. So far as judgment of Hon‟ble Supreme Court in the case of State of Haryana vs. Haryana Veterinary & AHTS Association and Anr. reported in (2000) 8 SCC 4 is concerned, the same is no longer a good law in view of the judgment report in:-
(i) (2018) 7 SCC 270
(ii) (2019) 10 SCC 542
28
(iii) (2019) 10 SCC 516
(iv) (2017) 13 SCC 388
(v) (2010) 4 SCC 317
48. It has been held by Hon‟ble Supreme Court in the case of (Ms. X vs. Registrar General, High Court of Madhya Pradesh and Anr.) reported in (2022) 14 SCC 187 at para-99 as follows:-
Para-99:- It could thus be seen that this Court in Dhanwanti Devi [Union of India v. Dhanwanti Devi, (1996) 6 SCC 44] has held that a decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found."
49. It is well settled from the judgment of the Hon‟ble Supreme Court that services rendered in temporary/ad hoc period has to be counted also for the purpose of pensionary benefits and also for certain other benefits.
50. It has been held by Hon‟ble Supreme Court in the case of Punjab State Electricity Board and Anr. vs. Narata Singh and Anr. reported in (2010) 4 SCC 317 at para-39 to 43 as follows:-
"Para-39:- The learned counsel for the appellants pointed out the finding recorded by the Division Bench in the impugned judgment to the effect that "we are, therefore, clearly of the opinion that the work-charged service of the appellant with the Board must be counted for determining qualifying service for the purpose of pension" and argued that the judgment of the High Court should not be construed to mean as giving direction to the appellant to include the previous service rendered by Respondent 1 as work-charged employee of the State Government for pension purposes.
Para-40:- So far as this argument is concerned, it is true that the Division Bench of the High Court has expressed the above opinion in the impugned judgment. However, the reference to Rule 3.17(ii) of the Punjab Civil Services Rules as well as the Full Bench decision of the Punjab and Haryana High Court 29 in Kesar Chand v. State of Punjab [(1988) 5 SLR 27 (P&H)] and the speaking order dated 16-11-2005 passed by the Board rejecting the claim of Respondent 1 makes it abundantly clear that the High Court has directed the appellants to count the period of service rendered by Respondent 1 in work-charged capacity with the State Government for determining qualifying service for the purpose of pension. Further, Respondent 1 has been directed to deposit the amount of Employee's Contributory Fund which he had received from the appellants along with interest as per the directions of the Board before the pension is released to him.
Para-41:- All these directions indicate that the High Court had come to the conclusion that the period of service rendered by Respondent 1 in work-charged capacity under the State Government should be taken into consideration for determining qualifying service for the purpose of pension. Non-mention of such direction in the impugned judgment is merely a slip and the appellants cannot derive any advantage from this. Para-42:- The net result of the above discussion is that this Court does not find substance in any of the arguments advanced on behalf of the appellants. The appeal lacks merit and therefore, deserves to be dismissed. Therefore, the appeal fails and is dismissed. There shall be no order as to costs. Para-43:- The appellants are directed to implement the directions given by the High Court in the impugned judgment as early as possible and not later than three months from the date of receipt of the writ of this Court."
51. It has been held by Hon‟ble Supreme Court in the case of Union of India and Ors. vs. Rakesh Kumar and Ors. reported in (2017)13 SCC 388 at para-50 to 54 as follows:-
"Para-50:- With regard to the work-charged services, the Punjab High Court had taken note of the judgment in Kesar Chand v. State of Punjab [Kesar Chand v. State of Punjab, 1988 SCC OnLine P&H 338 : (1988) 5 SLR 27] , wherein Rule 3.17(ii) of the Punjab Civil Services Rules providing that period of service in work-charged establishments as not qualifying service was struck down. Thus the work-charged services rendered by the respondent in the State Government was counted.
Para-51:- The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State 30 Government as well as by the Board. The said judgment has no application in the facts of present case.
Para-52:- Another judgment relied by Shri Dhingra is in Harbans Lal v. State of Punjab [Harbans Lal v. State of Punjab, 2010 SCC OnLine P&H 8181] decided on 31-8-2010. In the said case also the Punjab and Haryana High Court considered the Punjab Civil Services Rules and pension scheme which came into effect w.e.f. 1-1-2004. The said judgment was on different statutory rules and in facts of that case, which does not help the respondent in the present case.
Para-53:- In view of the foregoing discussion, we hold:
Para-53.1:- The casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension.
Para-53.2:- The casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for the purposes of pension.
Para-53.3:- Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge of such post as per Rule 20 of the 1993 Rules. Para-53.4:- It is open to the Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfil the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of the 1993 Rules.
Para-54:- In result, all the appeals are allowed. The impugned judgments [Union of India v. Rakesh Kumar, 2014 SCC OnLine Del 7599] , [Union of India v. Yashbir Kumar, 2014 SCC OnLine Del 7600] , [Union of India v. Dinesh Kumar Gupta, 2016 SCC OnLine Del 6569] , [Union of India v. Prem Pal Singh, 2014 SCC OnLine Del 2354] of the Delhi High Court are set aside. The writ petitions filed by the appellants are allowed, the judgments [Prem Pal Singh v. Union of India, 2014 SCC OnLine CAT 5658] , [Rakesh Kumar v. Union of India, 2014 SCC OnLine CAT 582] , [Yashbir Kumar v. Union of India, 2014 SCC OnLine CAT 5659] of the Central Administrative Tribunal are set aside and the original 31 applications filed by the respondents are disposed of in terms of what we have held in para 53 as above."
52. It has been held by Hon‟ble Supreme Court in the case of Habib Khan vs. State of Uttrakhand and Ors. reported in (2019) 10 SCC 542 at para-6 and 7 as follows:-
"Para-6:- The pari materia provision contained in Rule 3.17(ii) of the Punjab Civil Services Rules had been struck down by a Full Bench decision of the Punjab and Haryana High Court in Kesar Chand v. State of Punjab [Kesar Chand v. State of Punjab, 1988 SCC OnLine P&H 338 : AIR 1988 P&H 265 :
(1988) 5 SLR 27] . The challenge by the State against the aforesaid decision of the Full Bench of the Punjab and Haryana High Court was negatived [Dakshin Haryana Bijli Vitran Nigam v. Bachan Singh, (2009) 14 SCC 793 : (2010) 1 SCC (L&S) 463] by this Court. The matter came up for consideration before this Court, once again, in Punjab SEB v. Narata Singh [Punjab SEB v. Narata Singh, (2010) 4 SCC 317 : (2010) 1 SCC (L&S) 1025] . While dealing with the said question this Court in Para 25 of the report held that the Full Bench decision of the Punjab and Haryana High Court was perfectly justified in striking down Rule 3.17(ii) of the Punjab Civil Services Rules resulting in obliteration of the distinction made in the said Rules between "temporary and officiating service" and "work-charged service". On the said basis, this Court took the view that the period of work-charged service should be reckoned for purposes of computation of "qualifying service" for grant of pension.
Para-7:- As already observed, the provisions of Regulation 370 of the Civil Services Regulations applicable to the State of Uttarakhand are pari materia with the provisions of Rule 3.17(ii) of the Punjab Civil Services Rules, discussed above. If that is so, we do not see as to why the period of service rendered on work-charged basis by the appellants should not be counted for purposes of computation of "qualifying service"
for grant of pension. The pari materia provisions of Rule 3.17(ii) of the Punjab Civil Services Rules having been interpreted and understood in the above manner by this Court in Narata Singh [Punjab SEB v. Narata Singh, (2010) 4 SCC 317 : (2010) 1 SCC (L&S) 1025] we do not find any room for taking any other view except to hold that the appellants are entitled to reckon the period of work-charged service for purposes of computation of "qualifying service" for grant of pension. We order accordingly; allow these appeals and set 32 aside the impugned orders [Madan Mohan Chaudhary v. State of Uttarakhand, 2011 SCC OnLine Utt 60 : (2011) 128 FLR 910] passed by the High Court."
53. It has been held by Hon‟ble Supreme Court in the case of Prem Singh vs. State of Uttar Pradesh and Ors. reported in (2019) 10 SCC 516 at para-29, 30, 31, 32 and 37 as follows:-
"Para-29:- The submission has been urged on behalf of the State of Uttar Pradesh to differentiate the case between work- charged employees and regular employees on the ground that due procedure is not followed for appointment of work-charged employees, they do not have that much work pressure, they are unequal and cannot be treated equally, work-charged employees form a totally different class, their work is materially and qualitatively different, there cannot be any clubbing of the services of the work-charged employees with the regular service and vice versa, if a work-charged employee is treated as in the regular service it will dilute the basic concept of giving incentive and reward to a permanent and responsible regular employee.
Para-30:- We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work-charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma v. State of U.P. [CA No. ______2019 arising out of SLP (C) No. 5775 of 2018] the appellants were allowed to cross efficiency bar, after „8‟ years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak with effect from 15-9-1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs 200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs 205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale 33 was granted to them during the period they served as work- charged employees they served for three to four decades and later on services have been regularised time to time by different orders. However, the services of some of the appellants in few petitions/appeals have not been regularised even though they had served for several decades and ultimately reached the age of superannuation.
Para-31:- In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularised. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment. Para-32:- In view of the Note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work- charged, contingencies or non-pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
Para-37:- In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."
54. It has been held by Hon‟ble Supreme Court in the case of Mahesh Chandra Verma vs. State of Jharkhand through its Chief Secretary and Ors. reported in (2018) 7 SCC 270 at para- 16, 18 and 19 as follows:-
34"Para-16:- We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Track Court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal (2) [Brij Mohan Lal (2) v. Union of India, (2012) 6 SCC 502 : (2012) 2 SCC (L&S) 177] and in Mahesh Chandra Verma [Mahesh Chandra Verma v. State of Jharkhand, (2012) 11 SCC 656 : (2013) 1 SCC (L&S) 1] , the necessary corollary must also follow, of giving benefit of the period of service in Fast Track Courts for their pension and retiral benefits. The methodology of non-
creation of adequate regular cadre posts and the consequent establishment of Fast Track Courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants. Para-18:- The position in respect of the appellants is really no different on the principle enunciated, as there was need for a regular cadre strength keeping in mind the inflow and pendency of cases. The Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track Courts and continued to work for almost a decade. They were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this Court and have continued to work thereafter.
Para-19:- We are, thus, unhesitatingly and unequivocally of the view that all the appellants and Judicial Officers identically situated are entitled to the benefit of the period of service rendered as Fast Track Court Judges to be counted for their length of service in determination of their pension and retiral benefits."
55. Therefore, it further transpires that the petitioners are similarly situated to said Vikash Kumar Srivastava who had been 35 granted relief by the Hon‟ble Patna High Court in CWJC No.15828 of 2006 on 17.09.2013.
56. It has been held by Hon‟ble Supreme Court that relief should be granted to the persons, if the similarly situated persons have been granted same relief as has been held by Hon‟ble Patna High Court in CWJC No.15828 of 2006 on 17.09.2013 and thereafter upheld by Hon‟ble Division Bench in LPA No.1422 of 2014 vide order dated 27.01.2015.
57. It has been held by Hon‟ble Supreme Court in the case of Kangra Central Cooperative Bank Pensioners Welfare Association (Registered) vs. State of Himachal Pradesh and Others reported in 2022 SCC OnLine SC 1031 at para-15 as follows:-
"Para-15:- It has been brought to our notice that the Joint Registrar (Credit) Cooperative Societies, H.P., while disposing of the action initiated before him had observed as under:
"24. In view of the findings recorded hereinabove, the respondent bank shall consider the applicants/petitioners along with other similarly situated subordinate category employees for promotion to vacant post of junior clerks/Gr.IV under specified promotion quota earmarked under bank service rules for them subject to their eligibility and fitness for promotion as and when vacancies under promotion quota or otherwise are filled by the respondent bank in near future. Further, the period of service rendered by the applicants/petitioners as sub-helpers on contract/ad hoc basis shall be considered as qualifying service by the bank for determining their length of service in feeder/subordinate category for the purpose of promotion to junior clerks/Gr.IV as per rules and settled principles of service jurisprudence and in view of the fact that bank had extended their contract period till 2011 as per terms of the scheme of appointment and rules etc.
25. In the aforesaid terms, the representations/references u/s 72 of the Act ibid preferred by the applicants/petitioners stand disposed of in compliance of the orders of Hon'ble High Court, H.P. these findings made before the parties present 36 today on 18.8.2012 at Shimla shall also be kept on record in concerned files of the applicants/petitioners as those are preferred on similar grounds before Registrar Cooperative Societies, H.P. and stood clubbed as discussed above and accordingly disposed of along with applications filed for stay etc. if any. These case files be returned along with findings to the Registrar Cooperative Societies, H.P. for record and further appropriate action after due completion."
58. It has been held by Hon‟ble Supreme Court in the case of Om Prakash Banerjee vs. State of West Bengal and Others reported in 2023 SCC OnLine SC 771 at para-24 and 28 to 31 as follows:-
"Para-24:- At the outset, we would like to state that this a case of gross violation of Article 14 and 16 of the Constitution. The Appellant, who has been working in Respondent No. 3- Municipality since 1991, and was, subsequently, appointed as a clerk in 1996; has not been regularised in his service. Moreover, his several of his co-employees (including juniors) have been regularised in service. The High Court's Order dated 20.06.2000 in Writ Petition No. 19555 of 1999 clearly shows that absorption has been given effect to vide Order dated 26.09.1996. The said writ petition was dismissed to the extent of entitlement of back dated appointment and arrears. However, the Respondents never paid any heed to such order and inordinately delayed the Appellant's appointment, while simultaneously absorbing other casual employees. Even the Appellant's service book records that Respondent No. 3- Municipality has absorbed the Appellant in view of the High Court's Order dated 20.06.2000 in Writ Petition No. 19555 (W) of 1999.
Para-28:- The facts of U.P. SEB (supra) are similar to the case at hand. The relevant portion of the said judgment is being reproduced hereunder:
"3. By means of the writ petition, 34 petitioners who were daily wage employees of the Cooperative Electric Supply Society (hereinafter referred to as "the Society") had prayed for regularisation of their services in the U.P. State Electricity Board (hereinafter referred to as "the Electricity Board"). It appears that the Society had been taken over by the Electricity Board on 3-4-1997. A copy of the minutes of the proceeding dated 3-4-1997 is Annexure P-2 to this appeal. That proceeding was presided over by the Minister of Cooperatives, U.P. 37 Government and there were a large number of senior officers of the State Government present in the proceeding. In the said proceeding, it was mentioned that the daily wage employees of the Society who are being taken over by the Board will start working in the Electricity Board "in the same manner and position".
4. Pursuant to the said proceeding, the respondents herein were absorbed in the service of the Electricity Board.
5. Earlier, the Electricity Board had taken a decision on 28-11-1996 to regularise the services of its employees working on daily-wage basis from before 4-5-1990 on the existing vacant posts and that an examination for selection would be held for that purpose.
6. The contention of the writ petitioners (the respondents herein) was that since the Society had been taken over by the Electricity Board, the decision dated 28-11-1996 taken by the Electricity Board with regard to its daily wage employees will also be applicable to the employees of the Society who were working from before 4-5-1990 and whose services stood transferred to the Electricity Board and who were working with the Electricity Board on daily-wage basis.
7. The learned Single Judge in his judgment dated 21-9- 1998 held that there was no ground for discriminating between two sets of employees who are daily wagers, namely, (i) the original employees of the Electricity Board, and (ii) the employees of the Society, who subsequently became the employees of the Electricity Board when the Society was taken over by the Electricity Board. This view of the learned Single Judge was upheld by the Division Bench of the High Court.
8. We are in agreement with the view taken by the Division Bench and the learned Single Judge.
9. The writ petitioners who were daily wagers in the service of the Society were appointed in the Society before 4-5- 1990 and their services were taken over by the Electricity Board "in the same manner and position". In our opinion, this would mean that their services in the Society cannot be ignored for considering them for the benefit of the order dated 28-11- 1996.
........
19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years' service and it will surely not be reasonable if their claim for regularisation is denied even after such a long period of 38 service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularisation and are made to face the same selection which fresh recruits have to face."
Para-29:- The principles of natural justice, too, demand that the Appellant cannot be denied the benefit of the regularisation of services when his similarly placed fellow employees have been granted the said benefit.
Para-30:- Therefore, we do not agree with the view taken in the impugned judgment of the High Court as well as by the learned Single Judge in Writ Petition No. 31399 (W) of 2017. The Appellant herein, in our considered opinion, is entitled to receive back wages and benefits from 1991, along with an interest of 10%.
Para-31:- Accordingly, the Appeal is allowed. The impugned judgment of the High Court dated 10.12.2019, passed in MAT No. 611 of 2018 and CAN No. 10038/2018 is hereby set aside. However, in the facts and circumstances of the case, we do not make any order as to costs."
59. It is further evident that the writ petitioners have not claimed any seniority or benefits from the Intervener petitioners or any other persons who are/were senior to them in the Notification dated 25.10.1989 (Annexure-7). Therefore, the petitioners are not disturbing the seniority of the Intervener petitioners rather they are claiming their services to be treated with effect from their respective dates of initial appointment made in the year 1987 on 10.09.1987, 03.09.1987, 10.09.1987, 25.09.1987, 16.09.1987, 01.09.1987, 21.09.1987 and 31.08.1987 respectively for the purpose of shifting of date of 1st ACP and 2nd MACP whereby they have claimed to 1st ACP from the year 1999 instead of 2001 as granted vide Notification dated 01.03.2005 (Annexure-11) and 2nd MACP with effect from the year 2007 instead of 2009 as granted vide Notification dated 30.04.2012 (Annexure-12).
3960. It is further evident that the writ petitioners have neither challenged the seniority of the Intervener petitioners nor any other persons and they have not impleaded them as parties in the present writ petition.
61. In view of the law laid down by Hon‟ble Supreme Court, Hon‟ble Patna High Court as discussed earlier and under the circumstances, the writ petitioners are entitled to get the pensionary benefits from the date of their initial appointments made in the year 1987 (i.e. Annexure-2, 3, 4 and 5 series) their respective dates of appointment instead of 25.08.1989 (i.e. Annexure-7) and their pensionary benefits has to be calculated from the date of their ad-hoc/temporary appointment initially made without affecting the seniority of the Intervener Petitioners or anyone who have not moved before this Court.
62. However, the claim of the petitioners for grant of seniority is not tenable and as such rejected at this stage, as they have moved after delay of around 28 years and they have neither impleaded the Intervener petitioners or any other persons as the parties in this case, who are senior to them.
63. Thus, this writ petition filed by the petitioners is allowed in part with the observations as indicated above.
64. Pending I.A. (s), if any, stands dispose of.
(Sanjay Prasad, J.) Jharkhand High Court, Ranchi Dated:26th November, 2024 AFR/ Saket 40