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2008 DIGILAW 2093 (PNJ)

Gaje Singh v. State Of Haryana

2008-12-11

AUGUSTINE GEORGE MASIH

body2008
Judgment Augustine George Masih, J. 1. This petition under Article 226 of the Constitution of India has been moved by the petitioners claiming therein seniority over and above respondent No. 3 on the ground that he was not entitled to regularization as per the Policy dated 01.01.198.0 (Annexure P-2) as he did not fulfill the condition of two years of minimum period of service on a Class-III post, on which he has been regularized. 2. It is the submission of the petitioners that petitioner No. 1 was initially appointed as Instructor on 23.10.1975 and petitioner No. 2 on 13.10.1975. They continued as such and through the regular process of selection, petitioner No. 1 and petitioner No. 2 were selected by the Subordinate Services Selection Board, Haryana in an interview, which was held in the month of November, 1980. Respondent No. 3, qua whom the petitioners claim seniority over and above, was appointed as an Instructor on 15.10.1975. He was appointed on ad hoc basis as a Group Instructor on 04.04.1978 and he continued as such. It is the submission of the petitioners that respondent No. 3 also participated in the selection process for appointment to the post of Group Instructor on regular basis and participated in the interview along with the petitioners in the month of November, 1980. Petitioners No. 1 and 2 were selected on the said post, however, respondent No. 3 could not make the grade and was thus not selected. It is the further submissions of the petitioners that respondent No. 3 made a request for regularizing his services on the post of Group Instructor to the respondents but his request was turned down and was duly conveyed to him by the then Director, Industrial Training Department, Haryana vide his letter dated 17.12.1980. It would not be out of way to mention here that the Director, Industrial Training Department, Haryana, is the appointing authority of the petitioners as well as respondent No. 3. It would not be out of way to mention here that the Director, Industrial Training Department, Haryana, is the appointing authority of the petitioners as well as respondent No. 3. It is on this basis that the petitioners submit that petitioner No. 1, who joined on regular basis on 31.03.1981 and petitioner No. 2, who joined on regular basis on 08.07.1981 as Group Instructors would be senior to respondent No. 3 in the light of the fact that his request for regularization has been rejected by the respondents on 17.12.1980 and subsequently when he was regularized he did not fulfil the requirement of the policy under which his services were regularized. 3. However, counsel for respondent No. 3 has submitted that there was a Policy decision taken by the Government of Haryana, which is dated 01.01.1980. According to this Policy decision, such Class-III posts as were held by the employees for a minimum period of two years on 31.12.1979 on ad hoc basis were taken out from the perview of the Subordinate Services Selection Board on which such employees were required to be regularized, who fulfil the conditions prescribed in the said Policy. According to him, respondent No. 3 fulfilled the requirement of the Policy and, therefore, he was, in accordance with the Policy, regularized as Group instructor w.e.f. 01.01.1980. His services having been regularized from 01.01.1980 as Group Instructor, he would, therefore, rank senior to petitioners No. 1 and 2 as they were appointed on regular basis after the said date and as a matter of fact, petitioner No. 1 was appointed on 31.03.1981 and petitioner No. 2 was appointed on 08.07.1981. 4. On the other hand counsel for the petitioners submits that respondent No. 3 has been granted the benefit, which he was not entitled to as, according to him, respondent No. 3 had not completed two years of service on 01.01.1980 on the post of Group Instructor. 5. This is an admitted position that respondent No. 3 was appointed as Group Instructor on 04.04.1978 on ad hoc basis and if we count the period of his ad hoc service, it can not be said by any stretch of imagination that he has completed two years of service as Group Instructor on ad hoc basis on 31.01.1979, which is the relevant date for consideration of completing two years of service on ad hoc basis. 6. 6. Counsel for respondent No. 3 here contends that the Policy dated 01.01.1980 (Annexure P-2) only speak about an ad hoc employee, who has completed minimum of two years of service on 31.12.1979 on a Class-III post. It does not speak that he should be on that very post on which he is seeking regularization. 7. A perusal of the Notification dated 01.01.1980 (Annexure P-2) would show that what the Instructions say is that the Governor of Haryana hereby excludes from the purview of the Subordinate Services Selection Board, Haryana, such Class-III posts as have been held for a minimum period of two years on 31.12.1979 by ad hoc employees, who are to be regularized if they fulfil the following conditions. Class-III posts, which have been referred to here are the category of posts to which this Policy would apply. The conditions, which have been prescribed under the Policy, have been enumerated thereafter. Condition (a) would be relevant as far as the present case is concerned, which is reproduced herein below. "(a) Only such ad hoc employees as have completed a minimum of two years service on 31st December, 1979 should be made regular. However, break in service rendered on ad hoc basis up to a period of one month may be condoned but break occurring because he was against a post/vacancy for which no regular recruitment was required/intended to be made i.e. leave arrangements or filling up of other short-time vacancies may not be condoned." 8. A perusal of the above would show that only such ad hoc employees, who have completed a minimum of two years of service on 31.12.1979, should be made regular on the post, which is held by them. This means that the appointment should be on a particular post. It canot be a combination of more than one post as has been tried to be projected by the counsel for respondent No. 3 that respondent No. 3 was, as a matter of fact, before 04.04.1978 working on the post of Fitter Instructor w.e.f. 30.11.1977, which again is a Class-III post. That being the position, the services of respondent No. 3 cannot be held to be covered by the Instructions dated 01.01.1980 (Annexure P-2) and, therefore, the consequential regularization also cannot, to that extent, held to be valid. That being the position, the services of respondent No. 3 cannot be held to be covered by the Instructions dated 01.01.1980 (Annexure P-2) and, therefore, the consequential regularization also cannot, to that extent, held to be valid. That being so, he cannot claim himself to be senior to petitioners No. 1 and 2 as his regularization from 01.01.1980 cannot be said to be in accordance with law. Further, equity is also not in favour of respondent No. 3 as in the selection in which the petitioners and respondent No. 3 participated for regular appointment as Group Instructor, the interview for which was held in November, 1980, the petitioners were selected and appointed on regular basis whereas the respondent No. 3 failed to make the grade. He, therefore, cannot claim and be granted the benefit of back door entry which would violate Articles 14 and 16 of the Constitution of India in comparison to and over and above the regularly selected petitioners on the post of Group Instructor. 9. Consequence thereof would be that petitioners No. 1 and 2 would rank senior to respondent No. 3 and the seniority, as circulated vide order dated 13.08.1988 (Annexure P-7), cannot be sustained and is hereby quashed. Accordingly, the order dated 20.07.1988 (Annexure P-9) rejecting the representation of the petitioners claiming their seniority over respondent No. 3 is also quashed. Petitioners are held to be senior to respondent No. 3. It goes without saying that all consequential benefits, which would flow from such refixation of seniority, will be given to the petitioners within a period of four months from the date of receipt of a copy of this order. 10. This petition is disposed of with the above directions.