Punjab-Haryana High Court
Dr. Harminder Singh vs State Of Punjab on 23 October, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:138751
CM-16914-CWP-2024 in/and
CWP No. 1212 of 2001
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(104) CM-16914-CWP-2024 in/and
CWP No. 1212 of 2001
Date of Decision : 23.10.2024
Dr. Harminder Singh
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Mukesh Arora, Advocate for the petitioner.
Mr. Arun Gupta, Deputy Advocate General, Punjab.
***
Harsimran Singh Sethi J. (Oral)
CM-16914-CWP-2024
Present application has been filed for fixing the main writ
petition to an early actual date of hearing.
Notice of the application to counsel for the respondents.
On the asking of the Court, Mr. Arun Gupta, Deputy Advocate
General, Punjab, who is present in Court, accepts notice on behalf of the
respondent-State and raises no objection for the grant of prayer as made in
the present application.
Keeping in view the averments made in the application, which
are duly supported by an affidavit, the application is allowed and on the joint
request of learned counsel for the parties, the main petition is taken up for
hearing today.
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1. In the present petition, the prayer of the petitioner is that the ad-
hoc service rendered by the petitioner should be taken into account for the
grant of increment, pay fixation and seniority w.e.f. 07.02.1989.
2. Learned counsel for the petitioner submits that once the
petitioner continued working after his ad-hoc appointment till the
regularization of his services, the ad-hoc service rendered by the petitioner is
to be taken into account for the grant of increment, seniority as well as the
pay fixation.
3. Learned counsel for the respondents, on the other hand, submits
that the law on the said issue has already been settled by the Hon'ble
Supreme Court of India in Civil Appeal No. 6026-6028-2021 titled as
Malook Singh and others Vs. State of Punjab and others, decided on
28.09.2021. According to the said judgment, no benefit of ad-hoc service can
be given for the purpose of increment, seniority and pay fixation and the
same can only be considered for the grant of pensionary benefits.
4. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
5. In the present petition, the petitioner was selected as a Medical
Officer on ad-hoc basis, which services of the petitioner were only
regularized by the respondents in April, 1996.
6. It may be noticed that the selection to the post of Medical
Officer can only be made through the Public Service Commission, which
process was not followed while appointing the petitioner. Once, the
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appropriate procedure for selection to the post of Medical Officer was not
followed when the petitioner was given ad-hoc appointment, no benefit of the
ad-hoc service can be given towards the grant of seniority etc. as the initial
appointment of the petitioner was not as per the Rules or the process
envisaged for appointment to the post of Medical Officer.
7. Further, the said issue has already been settled by the Hon'ble
Supreme Court of India in Malook Singh and others (supra), wherein, it has
been held that where the initial appointment of the employee is not as per the
Rules or the process envisaged, the benefit of ad-hoc service cannot be given
either towards the increment, seniority or pay fixation. The relevant paras of
judgment in Malook Singh and others(supra) are as under :
"18. As a matter of first principle, the view which has
been adopted in the impugned judgment of the Division Bench of
the High Court cannot be faulted. The policy for regularization
issued on 3 May 1977 is clear in regard to the date of
regularization, the principle for reckoning seniority and the
basis on which seniority should be reckoned inter se between
persons belonging to the group of ad hoc employees who were
regularized. The policy clearly specifies that regularization
would be granted to persons who had fulfilled a minimum of one
year service as on 31 March 1977. As regards seniority, clause
5(a) specifies that the seniority, upon regularization would date
back to 1 April 1977 vis a vis candidates appointed on a regular
basis after selection through the prescribed procedure. As
between ad hoc employees who were regularized, inter se
seniority would however be based on the length of service so
that a person possessing longer service would rank senior to a
junior in terms of the length of service.
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19. The judgment of the Single Judge in Malook Singh's case
essentially dealt with two facets. The first was that persons who
were recruited after following the regular procedure for
selection after the date of regularization of ad hoc employees on
1 April 1977 could not rank senior to those who had been
regularized prior to their date of appointment. The second
aspect on which the Single Judge held in favour of the
petitioners in CWP No 2780 of 1980 was that once
regularization takes place, the length of ad hoc service must
count for the determination of seniority. It is important to note
here that the second facet of the judgment of the Single Judge
was specifically kept open in the Letters Patent Appeal by the
Division Bench. Therefore, clearly the judgment in Malook
Singh's case did not conclude the issue of whether ad hoc service
would count for the purpose of determining seniority.
20. The law on the issue of whether the period of ad hoc service
can be counted for the purpose of determining seniority has been
settled by this Court in multiple cases. In Direct Recruits
(supra), a Constitution Bench of this Court has observed:
"13. When the cases were taken up for hearing before us,
it was faintly suggested that the principle laid down in
Patwardhan case [(1977) 3 SCC 399: 1977 SCC (L&S)
391: (1977) 3 SCR 775] was unsound and fit to be
overruled, but no attempt was made to substantiate the
plea. We were taken through the judgment by the learned
counsel for the parties more than once and we are in
complete agreement with the ratio decidendi, that the
period of continuous officiation by a government servant,
after his appointment by following the rules applicable for
substantive appointments, has to be taken into account for
determining his seniority; and seniority cannot be
determined on the sole test of confirmation, for, as was
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pointed out, confirmation is one of the inglorious
uncertainties of government service depending neither on
efficiency of the incumbent nor on the availability of
substantive vacancies. The principle for deciding inter se
seniority has to conform to the principles of equality spelt
out by Articles 14 and 16. If an appointment is made by
way of stop-gap arrangement, without considering the
claims of all the eligible available persons and without
following the rules of appointment, the experience on such
appointment cannot be equated with the experience of a
regular appointee, because of the qualitative difference in
the appointment. To equate the two would be to treat two
unequals as equal which would violate the equality clause.
But if the appointment is made after considering the
claims of all eligible candidates and the appointee
continues in the post uninterruptedly till the regularization
of his service in accordance with the rules made for
regular substantive appointments, there is no reason to
exclude the officiating service for purpose of seniority.
Same will be the position if the initial appointment itself is
made in accordance with the rules applicable to
substantive appointments as in the present case. To hold
otherwise will be discriminatory and arbitrary.....
.....
47. To sum up, we hold that
(A) Once an incumbent is appointed to a post
according to a rule, his seniority has to counted from the
date of appointment and not according to date of his
confirmation. The corollary to 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
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in such post cannot be taken into account considering the
seniority."
(emphasis supplied)
The decision in Direct Recruits (supra) stands for
the principle that ad hoc service cannot be counted for
determining the seniority if the initial appointment has
been made as a stop gap arrangement and not according
to rules. The reliance placed by the Single Judge in the
judgement dated 6 December 1991 on Direct Recruits
(supra) to hold that the ad hoc service should be counted
for conferring the benefit of seniority in the present case is
clearly misplaced. This principle laid down in Direct
Recruits (supra) was subsequently followed by this Court
in Keshav Chandra Joshi v. Union of India, 1992 Supp (1)
SCC 272. Recently a two judge Bench of this Court in
Rashi Mani Mishra v. State of Uttar Pradesh, 2021 SCC
Online SCC 509, of which one of us (Justice DY
Chandrachud) was a part, observed that the services
rendered by ad hoc employees prior to their regularization
cannot be counted for the purpose of seniority while
interpreting the Uttar Pradesh Regularization of Ad Hoc
Appointment Rules. This Court noted that under the
applicable Rules, "substantive appointment" does not
include ad hoc appointment and thus seniority which has
to be counted from "substantive appointment" would not
include ad hoc service. This Court also clarified that the
judgement in Direct Recruits (supra) cannot be relied
upon to confer the benefit of seniority based on ad hoc
service since it clearly states that ad hoc appointments
made as stop gap arrangements do not render the ad hoc
service eligible for determining seniority. This Court
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speaking through Justice MR Shah made the following
observations:
"36. The sum and substance of the above discussion would
be that on a fair reading of the 1979 Rules, extended from
time to time; initial appointment orders in the year 1985
and the subsequent order of regularization in the year
1989 of the ad hoc appointees and on a fair reading of the
relevant Service Rules, namely Service Rules, 1993 and
the Seniority Rules, 1991, our conclusion would be that
the services rendered by the ad hoc appointees prior to
their regularization as per the 1979 Rules shall not be
counted for the purpose of seniority, vis-a-vis, the direct
recruits who were appointed prior to 1989 and they are
not entitled to seniority from the date of their initial
appointment in the year 1985. The resultant effect would
be that the subsequent re-determination of the seniority in
the year 2016 cannot be sustained which was considering
the services rendered by ad hoc appointees prior to 1989,
i.e., from the date of their initial appointment in 1985.
This cannot be sustained and the same deserves to be
quashed and set aside and the seniority list of 2001
counting the services rendered by ad hoc appointees from
the date of their regularization in the year 1989 is to be
restored.
37. Now so far as the reliance placed upon the decision of
this Court in the case of Direct Recruit Class II Engg.
Officers' Assn. (supra), relied upon by the learned Senior
Advocate appearing on behalf of the ad hoc appointees is
concerned, it is required to be noted that even in the said
decision also, it is observed and held that where initial
appointment was made only ad hoc as a stop gap
arrangement and not according to the rules, the officiation
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in such post cannot be taken into account for considering
the seniority. In the case before this Court, the
appointments were made to a post according to rule but as
ad hoc and subsequently they were confirmed and to that
this Court observed and held that where appointments
made in accordance with the rules, seniority is to be
counted from the date of such appointment and not from
the date of confirmation. In the present case, it is not the
case of confirmation of the service of ad hoc appointees in
the year 1989. In the year 1989, their services are
regularized after following due procedure as required
under the 1979 Rules and after their names were
recommended by the Selection Committee constituted
under the 1979 Rules. As observed hereinabove, the
appointments in the year 1989 after their names were
recommended by the Selection Committee constituted as
per the 1979 Rules can be said to be the "substantive
appointments". Therefore, even on facts also, the decision
in the case of Direct Recruit Class II Engg. Officers' Assn.
(supra) shall not be applicable to the facts of the case on
hand. At the cost of repetition, it is observed that the
decision of this Court in the case of Direct Recruit Class II
Engg. Officers' Assn. (supra) was considered by this Court
in the case of Santosh Kumar (supra) when this Court
interpreted the very 1979 Rules." The notification dated 3
May 1977 stated that the ad hoc appointments were made
in administrative interest in anticipation of regular
appointments and on account of delay that takes place in
making regular appointment through the concerned
agencies. In this regard, the vacancies were notified to the
Employment Exchange or advertisements were issued, as
the case maybe, by appointing authorities. The
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appointments were not made on the recommendation of
the Punjab Subordinate Service Selection Board. However,
subsequently a policy decision was made to regularize the
ad hoc appointees since their ouster after a considerable
period of service would have entailed hardship. Thus, the
initial appointment was supposed to be a stop gap
arrangement, besides being not in accordance with the
rules, and the ad hoc service cannot be counted for the
purpose of seniority".
8. Learned counsel for the petitioner has not been able to rebut the
said judgment not to be applicable in the facts and circumstances of the
present case.
9. Keeping in view the above, no ground is made out for any
interference by this Court in the present petition.
10. Dismissed.
11. Pending miscellaneous application, if any, also stands disposed
of.
October 23, 2024 (HARSIMRAN SINGH SETHI)
kanchan JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
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