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2006 DIGILAW 1993 (PNJ)

Ram Niwas v. State Of Haryana

2006-05-09

M.M.KUMAR, M.M.S.BEDI

body2006
Judgment M. M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution prays for quashing order dated 26/2/2001 (P-3) rejecting the claim of the petitioner for granting benefit of ad hoc service on the post of clerk towards seniority. The petitioner was appointed as Clerk on ad hoc basis on 2/5/1973 and he joined as such on 5/5/1973 (P-1) in the department of Food and Supplies, Haryana. The basis of his appointment was the recommendation received from the Employment exchange and the pay scale fixed by the respondent department was rs.110-225 with two advance increments to graduates plus allowances. In clause (i) of the appointment letter it was made clear that the appointment was purely on ad hoc basis and was not to exceed period of six months in any case. On 31/1/1985, the services of the petitioner were regularised with effect from 1/1/1980. The petitioner represented for counting of his ad hoc service towards seniority on 4/10/2000 and also sent reminder on 16/2/2001. However, the representation made by the petitioner was rejected on 26/2/2001 (P-3 ). Thereafter he was promoted as Auditor on 19/6/2001. The petitioner has claimed that the benefit of ad hoc service rendered by him for seniority has been wrongly denied by the respondents as he was appointed at the initial stage by adopting proper procedure by a competent authority and he had worked for about 7 years. 2. In the written statement the stand taken by the respondents is that ad hoc service rendered by the petitioner prior to 1/1/1980 cannot be counted for the purposes of seniority and reliance in this regard has been placed on the instructions dated 29.3.1957 (R-1 ). The other material assertions made by the petitioner have been conceded and one material objection has been raised, namely, that there is a colossal delay because his services were regularised with effect from 1.1.1980. No claim since 1980 with regard to adding up ad hoc service for the purposes of seniority has been made. 3. Learned counsel for the petitioner has argued that the petitioner must be given the benefit of ad hoc service for the purposes of seniority from 2.5.1973 till 31.12.1979 as his appointment was made according to the rules. No claim since 1980 with regard to adding up ad hoc service for the purposes of seniority has been made. 3. Learned counsel for the petitioner has argued that the petitioner must be given the benefit of ad hoc service for the purposes of seniority from 2.5.1973 till 31.12.1979 as his appointment was made according to the rules. For the aforementioned purpose, learned counsel has placed reliance on two judgments of this Court in the cases of Union of India V/s. Central Administrative Tribunal, chandigarh and another, 2005 (4) RSJ 433 and Sports Authority of india and another V/s. Adarsh Mehta and another, 2004 (4) RSJ 294. He has also placed reliance on a Constitution Bench judgment of the HON BLE Supreme Court in the case of Rudra Kumar Sain and others V/s. Union of India and others, 2000 (4) RSJ 1. 4. Mr. Harish Rathee, learned State counsel has argued that there is no possibility of granting the benefit of ad hoc service as the petitioner has not been able to show that his substantive appointment was made in accordance with the rules after considering the competing claims of all other available in the field. According to the learned State counsel no rules have been relied upon, which itself would show that the appointment of the petitioner in the year 1973 had not been made in accordance with the rules. Learned State counsel has maintained that it is not clear as to whether there was a substantive vacancy available at the time of his ad hoc appointment and, therefore, in the facts and circumstances as disclosed on record, no mandamus could be issued for counting the ad hoc service for the purposes of seniority. Another issue raised by the learned State counsel is that the position is settled since 1.1.1980 when the services of the petitioner were regularised and the same cannot be unsettled by directing counting of ad hoc service of the petitioner from 1973 and that the petitioner has failed to implead those who would be rendered junior to the petitioner if any relief is granted by this Court. 5. Having heard the learned counsel for the parties at a considerable length, we are of the view that the instant petition lacks merit and is liable to be dismissed for more than one reason. 5. Having heard the learned counsel for the parties at a considerable length, we are of the view that the instant petition lacks merit and is liable to be dismissed for more than one reason. A perusal of the appointment letter issued to the petitioner on 2.5.1973 (P-1) would categorically show that the petitioner was appointed on purely ad hoc basis for a period of six months. His services were liable to be terminated at any time without notice on the arrival of a regular candidate from the Haryana Subordinate Services Selection board. On the query made by the Court, learned counsel for the petitioner has not been able to point out any rule which might be applicable for the recruitment to the post of Clerk in the respondent department. However, we find that the post of Clerk was within the purview of Haryana Subordinate Services Selection Board and regular appointment was to be made by the Board. In other words, the appointment of the petitioner on ad hoc basis made in the year 1973 could not be considered in accordance with the rules. Once that is so, no benefit of ad hoc service could be granted to the petitioner for the purposes of seniority. In that regard reliance may be placed on a judgment of the Constitution Bench of the HON BLE Supreme Court in the case of Direct Recruit Class II Engineering Officers association V/s. State of Maharashtra, (1990) 2 SCC 715. After discussing a plethora of authorities their Lordships laid down numerous propositions in para 47. The first proposition would be applicable to the present case and the same reads as under:- " (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 rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. " 6. In view of the aforementioned principle laid down by the constitution Bench of the HON BLE Supreme Court it is evident that if the initial appointment of an employee is only on ad hoc basis and not according to the rules then such service is not to count for the purposes of seniority. It is conceded position that the petitioner was recommended by the Employment Exchange for appointment on the post of Clerk. It is conceded position that the petitioner was recommended by the Employment Exchange for appointment on the post of Clerk. A specific condition has been incorporated in his letter of appointment that he was appointed for a period of six months and his services could be terminated at any time without notice on arrival of a regular candidate selected by the Haryana Subordinate Services selection Board. There is no substance in the argument that the appointment of the petitioner was made in accordance with the rules. We are further of the view that the petitioner cannot be permitted to reopen the issue of seniority after such a long time. We find it strange that the petitioner has neither placed on record any seniority list nor has impleaded those who are senior to him and are likely to be adversely affected if the benefit of seven years ad hoc service was to be given to him. Therefore, we find that the writ petition suffers from serious legal infirmity. It is further appropriate to mention that the instant petition is pending since 2001 and there was ample opportunity for the petitioner to amend the writ petition by impleading the affected person as party respondents. The needful has not been done and, therefore, the writ petition is liable to be rejected on this ground alone. 7. The reliance of the petitioner on the judgment of the HON BLE Supreme Court in Rudra Kumar Sains case (supra) is absolutely misplaced because the judgment proceeds by taking into account Delhi Higher Judicial Service Rules, 1970. There is no comparable rules in the instant case which could be made the basis for concluding that the aforementioned ratio of the judgment apply to the facts of the present case. The position is not different in the other two cases. In the case of Adarsh Mehta (supra), Civil Court judgment and decree dated 14/1/1994, passed by the Subordinate Judge IInd class, Patiala, was subject matter of challenge before the Tribunal. The decree was upheld and the view taken by the Tribunal was accepted by this Court. The rules governing the service of Adarsh mehta have not been discussed and it cannot be concluded on the basis of the aforementioned judgment that the case of the petitioner would be covered by the view taken in Adarsh Mehtas case. The decree was upheld and the view taken by the Tribunal was accepted by this Court. The rules governing the service of Adarsh mehta have not been discussed and it cannot be concluded on the basis of the aforementioned judgment that the case of the petitioner would be covered by the view taken in Adarsh Mehtas case. In the other Division Bench judgment, rules have been discussed from the railway Establishment Manual. Rule 216a has been extracted and referred to whereas in the present case such a rule is missing. Therefore, no benefit can be obtained by the petitioner on the basis of the aforementioned judgments, which are totally in-applicable to the facts of the present case. 8. For the reasons stated above, this petition fails and the same is dismissed. However, in the peculiar facts and circumstances we do not make any order as to costs.