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2009 DIGILAW 633 (HP)

UMA DUTT SHARMA v. STATE OF HIMACHAL PRADESH

2009-07-07

RAJIV SHARMA

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JUDGMENT Rajiv Sharma, J.-The petitioner was appointed as Junior Basic Trained Teacher in Government Primary School, Malling, District Kinnaur on 16.7.1983 on ad hoc basis. He worked there till November, 1983. He was transferred to Government Primary School, Bari, District Kinnaur. He worked there up to 30.4.1985. Thereafter he was appointed as Language Teacher on ad hoc basis in the month of May, 1985 and was posted in Government Middle School, Hango, District Kinnaur. He worked in Government Middle School, Hango till 16.7.1985. Thereafter he worked as Language Teacher in the Government High School, Katgoan up to April, 1990. Vide office order dated 21.4.1990, he was appointed on tenure basis as Shastri in the pay scale of Rs. 16402925 and was transferred from Government High School, Katgoan to Government High School, Chhota Khamba, District Kinnaur. He was regularized vide office order dated 4.12.1995 with effect from 21.4.1994 as Shastri, but the period with effect from 21.4.1990 to 21.4.1994 has not been counted by the respondents for the purpose of seniority and increment. 2. Mr. S.S. Sood, Advocate has vehemently argued that the petitioner has worked uninterruptedly pursuant to Annexure A-1 dated 21.4.1990 till the date of his regularization i.e. 21.4.1994 and this period is to be counted for the purpose of seniority and increments. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that since the petitioner was appointed on tenure basis in the year 1990 vide Annexure A-1, this period cannot be counted for the purpose of seniority and increments. 4. I have heard the learned counsel for the parties and have perused the pleadings. 5. The petitioner has been appointed in different spells initially as Junior Basic Teacher and thereafter as Language Teacher on ad hoc basis in Government Primary School, Malling, Bari, Government Middle School, Hango and Government High School, Katgoan. He was appointed as Shastri vide office order dated 21.4.1990. The expression used in his appointment letter is ‘tenure’. However, no period has been prescribed in the office order dated 21.4.1990. His services were to be terminated on the joining of regular Shastri. The expression ‘tenure’ has been defined in FR 9 (30-A) as under: “Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period.” 6. However, no period has been prescribed in the office order dated 21.4.1990. His services were to be terminated on the joining of regular Shastri. The expression ‘tenure’ has been defined in FR 9 (30-A) as under: “Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period.” 6. It is true that the expression ‘tenure’ has been used in office order dated 21.4.1990, but no period has been prescribed therein. The petitioner has worked in this capacity from April, 1990 till 4.12.1995. He has been regularized with effect from 21st April, 1994 on the basis of office order dated 4.12.1995. It is apparent that before the appointment of the petitioner, he was working on “ad hoc” basis as Language Teacher or Shastri before the issuance of office order 21.4.1990. The nomenclature from “ad hoc” to “tenure” has been changed to deny the petitioner the benefits which were available to the persons appointed on ad hoc basis. The expression ‘ad hoc’ has been succinctly explained by their Lordships of the Hon’ble Supreme Court in Rudra Kumar Sain and others versus Union of India and others, (2000) 8 SCC 25 as under: “16. The three terms ad hoc, stop gap 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 Strouds 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 "fortuitous". In Blacks 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 Blacks Law Dictionary, means "something which is formed for a particular purpose". In Blacks 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 Blacks Law Dictionary, means "something which is formed for a particular purpose". The expression "stop-gap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need". In Oxford Dictionary, the word ad hoc means for a particular purpose, specially. In the same Dictionary, the word fortuitous means happening by accident or chance rather than design. In P. Ramanatha Aiyers Law Lexicon (2nd Edition) the word ad hoc is described as "for particular purpose, Made, established, acting or concerned with a particular and or purpose. The meaning of word fortuitous event is given as an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God. 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 stop-gap. 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 stop-gap 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 (ad hoc, fortuitous or stop-gap) appointment 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 question of inter se seniority of officers in the cadre. In the 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 appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In his 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/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.” 7. The respondent-State had been using the expression ad hoc/tenure interchangeably. A bare perusal of Annexure A-5 dated 13.1.2004 reveals that the State Government was also seized of the matter whether the financial benefits to the teachers appointed on tenure basis were to be granted at par with the ad hoc Teachers or not. Annexure A-5 makes an interesting reading. The Additional Secretary has expressed that tenure post has a definite meaning and the appointment on tenure basis is to be made for a specific period. Annexure A-5 makes an interesting reading. The Additional Secretary has expressed that tenure post has a definite meaning and the appointment on tenure basis is to be made for a specific period. However, according to him the appointments made against tenure posts have continued for unlimited period and the services of those tenure teachers who had completed three years of continuous service on or before 31.3.1994 were ordered to be regularized by the State Government. 8. In the present case also, the petitioner has been appointed on tenure basis, but no period was specified in the appointment letter except that services were liable to be terminated on the joining of regular hand. He has worked continuously for four years. Since he has worked for fairly long period, his appointment cannot be held to be purely on tenure basis. He is required to be treated at par with the persons appointed on ad hoc basis for all intents and purposes. Moreover, there is no difference in the duties discharged by the Teachers appointed on ad hoc basis or tenure basis. The difference is only in the nomenclature. The State Government had also been using the expression “ad hoc”, “tenure” and “contract” loosely. It has decided as per Annexures A-5 and A-6 annexed with M.A. No.3725/2006 to regularize the services on ad hoc/tenure/contract teachers who have completed three years service on or before 31.3.1994. The State has not maintained any distinction between ad hoc and tenure appointees at the time of regularization. The petitioner has also been regularized in the year 1995 with effect from 1.4.1994. He had worked continuously and there is no interruption from 1990 till the date of his regularization. 9. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to count the period with effect from 21.4.1990 to 4.12.1995 for the purpose of increments. The respondents are directed to grant the petitioner necessary increments after counting this period within a period of eight weeks from today. No costs.