Punjab-Haryana High Court
Gurinder Kaur vs The State Of Punjab Through The ... on 31 October, 2012
C.W.P. No.3646 of 1994 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
C.W.P.No. 3646 of 1994
Date of decision: October ,2012
Gurinder Kaur, District Employment Officer,Gurdaspur.
......................petitioner
Versus
1. The State of Punjab through the Secretary to Government,
Punjab, Department of labour and Employment, Punjab Civil
Secretariat, Chandigarh.
2. Miss Surinder Kaur Arora, Deputy Director, Employment
Directorate of Employment, Punjab, Sector-17, Chandigarh.
................respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
Present: Mr. C. L. Goyal, Advocate for the petitioner.
Mr. K.S.Sivia, Deputy Advocate General, Punjab
for respondent No.1.
Mr. G.S.Bal, Advocate, for respondent No.2.
1. Whether Reporters of local papers may be allowed
to see the judgment ?
2. To be referred to the reporter or not ?
3. Whether the Judgment should be reported in the
Digest ?
C.W.P. No.3646 of 1994 2
R.P. NAGRATH, J.
The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India for quashing order dated 16.4.1993 ( Annexure P/9) by which respondent No.2 was promoted from the post of Assistant Employment Officer ( Vocational Guidance) (hereinafter to be referred to "AEO (VG)" ) to the post of Deputy Director of Employment.
2. The petitioner applied for appointment by way of direct recruitment to the post of AEO(VG) pursuant to the advertisement issued in Februray, 1972 by the Punjab Public Service Commission (for short 'PPSC') and was one amongst seven candidates selected for the said post. Her appointment letter dated 17/18.8.1972 is Annexure P/2. The period of probation was to be two years. The appointment of the petitioner and terms and conditions of her service were governed by the Punjab Employment ( Class I & II) Service Rule,1963 ( for short 'Rule of 1963'). The petitioner was promoted as District Employment Officer vide order dated 19.5.1986 ( Annexure P/3). Respondent No.2 was in fact appointed as AEO (VG) vide order dated 26.10.1968 with effect from 31.10.1968 against temporary/ad hoc appointment. The aforesaid appointment was in response to a requisition sent by respondent No.1 to the Employment Exchange. The temporary/ad hoc appointment is governed by Rule 12 of Rules of 1963, which is reproduced as under
:
" 12.Recruitment against temporary vacancies : C.W.P. No.3646 of 1994 3
The services of a member of the service, appointed against a temporary vacancy shall,in the absence of any condition to the contrary in his appointment letter, be terminable on notice of one month on either side:
Provided that it will be open to the appointing authority to pay, in lieu of notice, the official's salary and allowances for the period by which the notice falls short of one month and the appointing authority on its part, may also permit an official to resign his post either without notice or by depositing with the appointing authority his salary and allowances in lieu of notice in respect of such period as the appointing authority may fix:
Provided further that the period so fixed shall not exceed the period by which the notice given by the official falls short of one month."
Therefore, the appointment of respondent No.2 was not through the PPSC.
3. It is further stated that respondent No.2 had also applied in response to the advertisement issued in February 1972 against which the petitioner was declared selected, but respondent No.2 was found unsuitable to the said post and her candidature was rejected. Another recruitment process was held in the year 1975 against which respondent No.2 applied and she was again rejected by the PPSC. The petitioner is not aware of the mode of appointment of C.W.P. No.3646 of 1994 4 respondent No.2 but she was approved for regularization of her service in March 8,1976 by the PPSC and her appointment letter is dated 27.1.1977. The petitioner has not challenged the mode of appointment of respondent No.2 but only challenged fixation of her seniority which is to be counted w.e.f. 27.1.1977.
4. In the seniority list as it stood on 1.10.1985 ( Annexure P/4), the petitioner was at serial No.2 whereas respondent No.2 at serial No.18. In the next common tentative seniority list ( Annexure P/5) as it stood on 01.07.1991, the petitioner is shown at serial No.9 and respondent No.2 at serial No.29. The date of regular appointment of the petitioner is 5.1.1972 and that of respondent No.2 as 27.1.1977.
5. The entire scenario changed on account of judgment passed in Civil Suit filed by respondent No.2 against the Department. The suit was dismissed by the trial Court on 5.12.1989 but in appeal before the Additional District Judge, Patiala, the same was decreed vide judgment dated 15.11.1991 ( Annexure P/7). It was held that respondent No.2 would be entitled to all service benefits including seniority with effect from 31.10.1968, when she was appointed by the competent authority and continued as such against a vacant post. The State of Punjab filed Regular Second Appeal in this Court which was dismissed as time barred. The review application was also dismissed vide order dated 16.10.1992( Annexure P/8). The State of Punjab filed Special Leave Petition before the Hon'ble Supreme Court which was also dismissed. The petitioner claims that the judgment is not binding upon her as she was not impleaded a C.W.P. No.3646 of 1994 5 party in the said Civil Suit though she was always shown senior to respondent No.2 in the gradation list and was adversely affected by the judgment of the Civil Court.
6. In the written statement of respondent No.1, it is not disputed that the petitioner was appointed through PPSC on 31.7.1972 and respondent No.2 on regular basis on 27.1.1977. The version that respondent No.2 was rejected by the PPSC in the earlier two selections is not denied but it is averred in para No.7 of written statement that the recommendation for appointment of respondent No.2 as AEO (VG) was made by the PPSC in the year 1975 as an additional candidate. Later on her case was considered sympathetically and she was issued the appointment letter on 27.1.1977. It is also stated that respondent No.2 was earlier appointed on ad-hoc basis on 26.10.1968 and joined as such on 31.10.1968. However, the seniority was granted to the respondent with effect from 31.10.1968 on basis of the Civil Court decree.
7. Respondent No.2 filed a short written reply stating in para 2 that a direction was issued to this respondent to file written statement on 16.1.2012 and as such a short written statement is being filed. However, the above statement was deleted on the request made by Counsel for respondent No.2 on 02.02.2012 as no such direction was issued by this Court. On merits, respondent No.2 claimed that she was appointed as AEO (VG) after she received a call through the Employment Exchange and interviewed by a Departmental Selection Committee. However, this respondent did not give any response to the averments that she was not declared C.W.P. No.3646 of 1994 6 selected on the basis of the advertisements issued in the years 1972 and 1975 or that she was appointed finally in January,1977. It is, however, not disputed that the Regular Second Appeal filed by the State of Punjab and the Department was dismissed by this Court on the ground of limitation and the review petition was also dismissed. Anneuxre R/2/1 is the order passed by Hon'ble Supreme Court dated 29.7.1993 vide which the Special Leave petition was dismissed. On the basis of judgment of the Civil Court a tentative seniority list dated 14.7.1993 ( Annexure R-2/2) was issued but no objection was raised by the petitioner against the said seniority list. In this seniority list, the name of respondent No.2 was placed at serial No.2 and that of petitioner at serial No.10.
8. Learned Counsel for the petitioner, the State Counsel and Counsel for respondent No.2 have been heard quite at length.
9. The frontal attack to the petitioner's claim on behalf of respondent No.2 is that she did not challenge the tentative seniority list Annexure R/2/2 circulated vide letter dated 14.7.1993 issued on the basis of the Civil Court decree. This argument has to be rejected out-rightly, because the petitioner was not impleaded in the Civil Suit, which respondent No.2 instituted against the State of Punjab through Secretary, Department of Employment and Labour and Director Employment. A perusal of the judgment would show that it was not even pleaded by the defendants that the suit is bad for non-joinder of those who would be affected by any decree that may be passed in the suit. Moreover, a letter dated 7.5.1993 ( Annexure P-10) was sent by the petitioner to the Secretary of the Department C.W.P. No.3646 of 1994 7 of Labour and Employment, Chandigarh in which she raised serious objections regarding assigning seniority to respondent No.2. on the basis of Civil Court decree. So the petitioner challenged the said seniority at the first available opportunity and the judgment of the Civil Court in which she was not a party cannot bind her. The present writ petition is dated 21.2.1994.
10. Respondent No.2 could not possibly raise a dispute that her previous appointment was on adhoc basis or purely temporary made in accordance with Rule 12 of Rules of 1963. The method of appointment to Class I and Class II service of Labour and Employment Department is given in Rule 9 of Rules of 1963. The Assistant Employment Officer is a Class II post under these Rules. 25% posts were to be filled by way of promotion from amongst the ministerial staff and 75% by way of transfer or deputation and direct recruitment. The direct recruitment to the said posts could be made on the basis of the competitive examination conducted by the PPSC for recruitment to the Punjab Civil Service ( Executive Branch) and allied Services. Clause (b) of Rule 9 pertains to the appointment for AEO (VG) and sub clause (2) provides for direct recruitment. The mode of determination of seniority of the members of Service is given in Rule 13 of Rules of 1963 which is reproduced as under :
"13.Seniority of members of service: The seniority inter-se of members of the Service shall be determined by the date of their continuous appointments in the Service.
Provided that in the case of members C.W.P. No.3646 of 1994 8 recruited by direct appointment, the order of merit determined by the Commission shall hot be disturbed;
Provided further in the case of two or more members appointed on the same date, their seniority shall be determined as follows :
(a) A member recruited by direct appointment be senior to a member recruited otherwise;
(b) a member recruited by promotion shall be senior to a member recruited by transfer; and
(c) in the case of members recruited by promotion or transfer; seniority shall be according to the seniority of such members in the appointments from which they were promoted or transferred; and
(d) in the case of members recruited 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 these appointment,and if the length of such service is the same, an older member shall be senior to the younger."
11. The controversy basically revolves around the fact whether the period of ad-hoc/temporary appointment of respondent C.W.P. No.3646 of 1994 9 No.2 is to be counted towards the seniority. The documents placed on record by the petitioner would leave no room of doubt that respondent No.2 was well aware of her appointment being ad hoc/temporary before she was recommended for the post of AEO (VG) by the PPSC as regular appointee. There is undated letter Annexure P/26 written by respondent No.2 to the Secretary of Government of Punjab, Labour and Employment Department, Chandigarh that when she was interviewed for the post in October,1968 she was 23-1/2 years old and had attained 20 months of experience by the time she filed this representation. So this representation appears to have been filed in the month of March/April,1970. It is stated that till that time the posts were not advertised and she had crossed 25 years of age. It was requested to arrange the advertisement of these vacancies at the earliest so that the vacancies are filled on regular basis and the ad-hoc appointees do not remain under unnecessary suspense. Prayer was also made to relax the age of ad-hoc appointees.
12. A letter dated 7.6.1971 ( Annexure P/27) was sent by the Secretary, Haryana Public Service Commission, Chandigarh requesting the Director of Employment, Punjab, Chandigarh to inform whether the respondent was ad-hoc or regular employee of the concerned department of Punjab. It suggests that respondent No.2 may also have applied for the concerned post in the Haryana State. Annexure P/28 dated 11.06.1971 is the response to that letter in which it was clearly stated that respondent No.2 was working on ad-hoc basis. Annexure P/29 is a letter dated 18.7.1972 from C.W.P. No.3646 of 1994 10 Secretary to Govt. of Punjab, Labour & Employment as desired by Finance Minister, addressed to Director Employment, Punjab, seeking information as to whether respondent No.2 was an ad hoc employee. If so, why the steps have not been taken to fill up this post on regular basis. This letter clearly emanated in view of the representation ( ( Annexure P/32) made by respondent No.2 to the Finance Minister. Respondent No.2 stated in this letter/representation that she was appointed as AEO (VG) on ad hoc basis in October,1968 and has put in four years of service. It is admitted by her in this letter that she was interviewed by PPSC in 1972 but unfortunately was not selected. She prayed for her continuation in service on ad hoc basis on account of creation of new Districts. She claimed herself senior most among the ad hoc appointees. Annexure P/30 is the reply dated 20.7.1972 from the Director of Employment, Punjab, Chandigarh to the effect that respondent No.2 was appointed in the department on ad-hoc basis and since the PPSC has not advertised the post of AEO (VG) the posts have not been filled on regular basis. The Commission had fixed the interview for seven posts for 19.6.1972 and 20.6.1972, the result of which was likely to be received. It is on the basis of this process that 7candidates including the petitioner were recommended by the PPSC, vide letter dated 31.7.1972 ( Annexure P/1).
13. There is also an order passed by the Secretary to the Government, Labour and Employment Department dated 19.5.1970 (Annexure P/25) to the effect that services of respondent No.2 were terminated with immediate effect. The subsequent correspondence C.W.P. No.3646 of 1994 11 would show that she did not relinquish charge and continued in service on ad-hoc basis. Letter dated 13.8.1970 ( Annexure P/14) shows that in order that the AEOs appointed on ad-hoc basis do not put forward any claim to appoint them on regular basis, the services of all the newly appointed AEO(VG) were terminated, and on their giving in writing that they would not put forward any claim for their appointment on regular basis, the orders of termination of their services were cancelled. It was made clear that none of the officers whose services were terminated had relinquished charge of their posts and all the officers except one attended the training arranged by Haryana Govt. from 18.5.1970 to 21.5.1970. Annexure P/31 is another letter dated 30.9.1972 to the effect that the services of ad- hoc Assistant Employment Officers were terminated on the joining on duty of regularly appointed Assistant Employment Officers and since one of the regularly appointed Assistant Employment Officer had proceeded on maternity leave, respondent No.2 was requested to be adjusted against the said post.
14. During the pendency of this petition, the record of appointment of respondent No.2 was requisitioned vide order dated 2.2.2012 and copy of the said record was placed on the file of this case. The letter of appointment of respondent No.2 against temporary post is dated 26.10.1968. It was stipulated that the appointment was purely on temporary basis and was terminable at any time without any notice or assigning any reason.
15. The letter of regular appointment of respondent No.2 is dated 27.1.1977 wherein it is clearly stated that the Governor of C.W.P. No.3646 of 1994 12 Punjab on the recommendation of PPSC appointed respondent No.2 as AEO (VG) and terms and conditions have also been stated which include the period of two years of probation etc.
16. Under Article 320(3) of the Constitution of India, it is mandatory that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted:
(a) on all matters relating to method of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c ) ....... ..... ....
(d) ....... ..... ....
(e) ....... ..... ...
Admittedly the post of AEO(VG) is a Class II post. The appointment to the post of AEO(VG) has not been taken out of the purview of Punjab State Service Commission ( Conditions of Service ) Regulations 1958. Otherwise too, it is not disputed during arguments that the appointment to this post has to be made in consultation with the Public Service Commission and by adopting the said process respondent No.2 was appointed as such vide appointment letter dated 27.1.1977.
17. In Md. Israils V. State of West Bengal 2002(1) SCT 756, Hon'ble Supreme Court held that where the initial appointment is C.W.P. No.3646 of 1994 13 only ad hoc and not according to the rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. Reliance in that case was also placed upon Masood Akhtar Khan and others V. State of Madhya Pradesh and others 1990(4) Supreme Court Cases 24 which also dealt with the case of direct recruits. The question for consideration was as to from what date the seniority in the cadre of an appointee could be considered ? In that case also the very appointment letters indicated that the appointments were made for a period of 6 months, pending regular selection by Public Service Commission. The appointees, however, were allowed to continue beyond the period of 6 months and later on regularly selected by the Public Service Commission. This court came to hold that the appointees, who have been allowed to continue beyond the period of 6 months and later on were regularly selected by the Public Service Commission can claim seniority from the date of their regular absorption in the cadre after being selected by the Public Service commission, and services rendered from the date of their initial stop gap appointment till regular selection will not count for their seniority in the cadre. In the said case before Hon'ble Supreme Court, the dispute was regarding seniority between the direct recruits and the promotees.
18. The case set up by respondent No.2 is that her application was recommended by Employment Exchange and the Committee was set up for her selection but it was not her contention that the appointment was made on regular basis in consultation with the Public Service Commission. The terms of her initial appointment C.W.P. No.3646 of 1994 14 letter dated 26.10.1968 are as under :
" The President of India is pleased to appoint you as Assistant Employment Officer ( Vocational Guidance), at Jullundur against the existing vacancy with immediate effect. The post is a Gazetted (Class II) in the scale of Rs.200-15-350 with usual allowances and you will be allowed the minimum of the time scale with usual allowances on your appointment as such. Further your appointment is on purely temporary basis and is terminable at any time without any notice or assigning any reason............"
19. Counsel for respondent No.2 has, however, relied upon Chambel Singh V. State of Haryana and another 1995(1) Recent Services Judgments 382 in support of his contention but that judgment does not support the respondent's contention. The petitioner in that case was appointed as Sub Inspector in the Food & Supplies Department, Haryana on ad-hoc basis on 9.11.1967 and continued to serve the department till his services were terminated on 14.10.1971. Subsequently, the petitioner and the like of him were given appointment as Sub Inspector on temporary basis with a specific stipulation that their services are liable to be terminated as soon as persons recommended by the Service Selection Board join and otherwise too without any notice and without assigning any reason. Later on, Service Selection Board recommended the name of the petitioner to be appointed as Sub Inspector, Food and Supplies Department and the Government of Haryana issued C.W.P. No.3646 of 1994 15 appointment letter on 6.6.1972. The petitioner felt aggrieved by the action of the respondents as services rendered by him on ad hoc basis i.e. for the period from 8.12.1967 to 10.6.1972 was not being counted for the purpose of seniority, increment, promotion and other consequential benefits. It was held in that case that merely because there was no break in service cannot be construed as a factor entitling such an incumbent to tag the period spent by him as an ad- hoc employee. It was ultimately held that the ad hoc service per se cannot be counted to determine the seniority in the cadre.
20. Petitioner's counsel also relied upon the judgment of Full Bench of this Court in Rakesh Kumar Singla V. State of Haryana & another 1995(4) RSJ 586 holding that "in the light of the judgments of the Supreme Court in Direct Recruit Class II Engineering Officers' Association V. State of Maharashtra AIR 1990 S.C.1607, State of West Bengal and others V. Aghore Nath Dey and others J.T. 1993 (2) S.C. 598 and Full Bench of this Court in Chambel Singh's case (supra) if the initial appointment is made by following the procedure laid down in the rules and the appointment continues in the post uninterruptedly till the regularisation of services in accordance with the Rules the period of officiation/ad-hoc service shall be counted."It was however, reiterated that if the appointment is not made according to the Rules or the appointee has not continued or is not regularised, such period of officiation/ ad hoc service shall not be counted for the purposes of his seniority. It was held that the corollary of the rule is that where initial appointment is only ad-hoc and not according to rules and made as a stop gap arrangement, C.W.P. No.3646 of 1994 16 the officiation in such post cannot be taken into account for considering the seniority.
21. In the present case the appointment of respondent No.2 made in 1968 was not in accordance with the Rules as it was without consultation with the State Public Service Commission which was mandatory and the respondent was well aware of the above flaw in her initial appointment because she had been making attempts for getting the posts advertised while she was still an ad hoc employee.
22. Rudra Kumar Sain and others V. Union of India and others 2000(4) RSJ 1 relied upon by the respondents' Counsel was a matter relating to seniority inter-se direct recruits and promotees Additional and Sessions Judges. It was found that the officers were promoted against temporary posts which continued for long and those appointments were also made under the Rules after due consultation and approval of the High Court. In the present case, however, the appointment was not made regularly against temporary post but due to availability of vacancies as ad hoc arrangement. In view of the law laid down by the Supreme Court and subsequent thereto in Md. Israils's case (supra), the law on the subject is crytalised.
23. It is, therefore, held that the judgment passed in the civil suit filed by respondent No.2 against the department and the State of Punjab on the basis of which respondent No.2 was given seniority from the date of initial appointment would not bind the petitioner.
24. It was submitted during arguments that respondent No.2 C.W.P. No.3646 of 1994 17 retired as Joint Director in the year 2003 whereas the petitioner retired in the year 2007 as Deputy Director.
25. Since the period of ad-hoc/temporary appointment of respondent No.2 cannot be counted towards her seniority vis-a-vis the petitioner, the case of the petitioner is required to be reconsidered keeping in view the number of incumbents, who may still be senior to the petitioner as per common seniority list.
26. In the result, the petition is allowed to the extent that the respondents would reconsider the case of the petitioner for promotion as Deputy Director, Joint Director or Additional Director on the assumption that respondent No.2 was not granted the promotion in view of the seniority fixed in consequence of the Civil Court decree and to issue fresh orders of promotion of petitioner notionally from the due dates and determine her pensionary benefits accordingly. The petitioner would not be entitled to any arrears of pay on the basis of the orders that may be passed in view of the above directions as she has not actually worked against those posts. Since the respondent-State may also feel bound by the judgment passed against them in the civil suit filed by respondent No.2., the non- existence of the sanctioned post against which the pensionary benefits are to be granted to the petitioner will not be a hindrance in the implementation of this judgment. The needful be done and the payment of arrears of pension be made within a period of four months from the date of receipt of a certified copy of this order, failing which the State would be liable to pay interest at the rate of C.W.P. No.3646 of 1994 18 8% per annum from the date of judgment till the amount is disbursed.
October ,2012 ( R.P. NAGRATH ) sks JUDGE