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Himachal Pradesh High Court · body

2008 DIGILAW 377 (HP)

Himachal Pradesh University v. Ramesh Chadha

2008-07-28

DEEPAK GUPTA, V.K.AHUJA

body2008
JUDGMENT Deepak Gupta, J. 1. The short question which arises in this writ petition is whether the long continuous ad-hoc service rendered by the respondent/ employee should be counted towards her qualifying service in terms of Rule 13 of the CCS. (Pension) Rules. 2. The brief facts necessary for decision of the case are that the respondent was initially appointed as Junior Lecturer in English in the H.P. University vide order dated 24.1.1977 issued by the Registrar at a fixed salary of Rs. 500/- P.M. purely on temporary basis. Thereafter, the Executive Council of the University in its meeting held on 7.9.1977 considered the case of the respondent alongwith others and it was decided to give them fixed salary of Rs. 700/- P.M. by treating them as Evaluators. At that time, the respondent was only a post-graduate. Thereafter, she did her M. Phil, and the Executive Council of the University vide resolution dated 1.7.1980 decided to grant regular scale of Rs. 700-1300 to the respondent with effect from 28.7.1979, the date she qualified her M. Phil examination. In the order it was noted that the continuation of the respondent would be on ad-hoc basis in the designation of Evaluator. Undisputedly the Executive Council in its meeting held on 30.5.1986 took a decision to regularize the services of all the Evaluators and Research Associates with immediate effect. The services of the respondent were also regularized. The respondent retired from service on attaining the age of superannuation on 1.7.1998. Thereafter, the pensionary and other retiral benefits were granted to her by reckoning her qualifying service only from the date of regularization i.e. 30.6.1986 till the date of superannuation. 3. The respondent filed Original Application No. 1033/2001 before the learned Tribunal praying that her entire service rendered from 22.1.1977 till her date of superannuation be counted as qualifying service for the purpose of retrial and pensionary benefits. This application was partly allowed and the learned Tribunal vide its order dated 8.1.2003 issued directions to the petitioner University to treat the period of service of the respondent from 28.7.1979 till the date of superannuation as qualifying service for working out her all the retiral benefits. The University aggrieved by this order is before us in the present writ petition. 4. We have heard Mr. B.C. Negi, learned Counsel for the petitioner and Mr. Surender Sharma, learned Counsel for the respondent. The University aggrieved by this order is before us in the present writ petition. 4. We have heard Mr. B.C. Negi, learned Counsel for the petitioner and Mr. Surender Sharma, learned Counsel for the respondent. Rule 13 of the C.C.S. (Pension) Rules reads as follows: 13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post: Provided further that: (a) in the case of a Government servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and (b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. (c) The provisions of Clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19. 5. The Apex Court has considered the question as to what service is to be considered as fortuitous and what service is to be considered as stopgap and what type of service is to be considered as ad-hoc in the judgment Rudra Kumar Sain and Ors. v. Union of India and Ors. AIR 2000 SC 2808 . The Court held as follows: 16. The three terms "ad hoc", "stopgap" and "fortuitous" are in frequent use in service jurisprudence. In the absence of definition of these terms in the Rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to be "fortuitous". In Black's Law Dictionary, the expression "fortuitous" means "occurring by chance", "a fortuitous event may be highly unfortunate". It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression "ad hoc" in Black's Law Dictionary, means "something which is formed for a particular purpose". The expression "stopgap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need". 19. The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as "ad hoc" or "stopgap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "stopgap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre. 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. 6. From a perusal of the aforesaid judgment, it is absolutely clear that the Apex Court held that the service which continues for a long period of time especially if the person had attained the minimum qualification cannot be treated as ad-hoc service. Prior to 1979, the respondent did not have an M. Phil, degree. Thereafter, she did her M. Phil degree. True it is that according to the rules the requisite minimum qualification was Ph. Prior to 1979, the respondent did not have an M. Phil, degree. Thereafter, she did her M. Phil degree. True it is that according to the rules the requisite minimum qualification was Ph. D. However, the very same rule also envisages that the Executive Council can relax these qualifications. From a perusal of the facts aforesaid, it is found that right from 24.9.1977 when the pay of the respondent was increased it was Executive Council which is governing body of the University which was taking decisions in the matter. The Executive Council vide its resolution dated 1.7.1980 decided to grant the regular pay scale to the respondent from the date which she had passed M. Phil. Examination. Therefore; it implies that the Executive Council had agreed to relax the requisite qualification of Ph.D. Admittedly, the respondent continued to work as such till her regularization in the year 1986. These seven years of service rendered on the directions of the Executive Council cannot be wished away by the University. 7. This long service followed by substantive appointment must be treated as a part of the qualifying service. Rule 13 of the Pension Rules which we have quoted hereinabove, provides that temporary or officiating service followed by substantive appointment in the same service of post must be counted for counting the qualifying service. Under decision No. 2 issued by the Government of India, Ministry of Finance half of the service rendered on daily wage has to be counted towards qualifying service. We see no reason why a person appointed on ad-hoc basis should be placed in a position worst than that of a daily wager. An ad-hoc appointee like the respondent getting the regular pay scale has to be equated with a person appointed on temporary or officiating basis. 8. Therefore, we find no error in the order of the learned Tribunal which has directed that the period of service with effect from 28.7.1979, on which date the services of the respondent were placed in the regular scale by a conscious decision of the Executive Council of the University, be treated as qualifying service. 9. In view of the above discussion, there is no merit in the writ petition, which is accordingly dismissed.