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2011 DIGILAW 30 (PNJ)

Sukhpal Singh Hundal v. State Of Punjab

2011-01-05

PERMOD KOHLI

body2011
Judgment Permod Kohli, J. 1. Dispute in these writ petitions relate to inter se seniority of the Members of the Class-Ill Service in the State of Punjab. 2. The petitioners and the private respondents were working as Assistants/ Senior Assistants at the time of filing of these writ petitions. The petitioners are aggrieved of the order dated 12.01.1994 (Annexure P-7) passed by the Department of General Administration, Secretariat Establishment in the State of Punjab, proposing to grant seniority to the writ petitioners in CWP No.2780 of 1980-Malook Singh and others by counting their ad hoc service towards total length of service; and the Seniority list dated 14.01.1994, (Annexure P-8) issued by the Government re-fixing the seniority by granting benefit of ad hoc service to the employees. 3. It may be useful to briefly notice the circumstances leading to the filing of these writ petitions. The facts are being extracted from CWP No. 1702 of 1994. 4. . The petitioners in this writ petition were initially recruited as Clerks in the year 1973 by direct recruitment. They were promoted as Senior Clerks and Assistants in the year 1980. All of them were designated as Senior Assistants in the year 1989. Their names were included in the seniority list as stood on 31.12.1978 and later seniority list as stood on 14.1.1994.73 Clerks, who were working in the office of the Punjab Civil Secretariat, challenged the seniority position as stood on 31.12.1978 by filing CWP No.2780 of 1980, against 27 Assistants/Senior Assistants impleaded as respondent Nos. 2 to 28 in the said writ petition. The petitioners herein were not parties to the said writ petition. 73 writ petitioners, in fact/claimed benefits of ad hoc service rendered by them towards their seniority as against the regularly recruited Clerks appointed later thanthe ad hoc engagement of those writ petitioners. Learned Single Judge of this Court allowed that writ petition vide judgment dated 06.12.1991 holding that on regularisation of the employees, their regular appointment would relate back to their initial engagement on ad hoc basis. The State of Punjab challenged the judgment of the learned Single Judge dated 06.12.1991 in LPA No.555 of 1992. Learned Single Judge of this Court allowed that writ petition vide judgment dated 06.12.1991 holding that on regularisation of the employees, their regular appointment would relate back to their initial engagement on ad hoc basis. The State of Punjab challenged the judgment of the learned Single Judge dated 06.12.1991 in LPA No.555 of 1992. A Division Bench of this Court while upholding the directions of the learned Single Judge to grant seniority to the writ petitioners over and above directly recruited persons, did not agree with the observations of the learned Single Judge that upon regularisatibn the services would relate back to the date of initial appointment. The relevant observations in this regards are noticed hereunder:- " The State of Punjab and the private respondents, however, sought to press in aid the instructions of the State Government of March 15, 1962, Annexure R-1, and it was sought to be contended on the basis thereof that the crucial date for determining inter se seniority must be taken to be the date on which they were recommended for appointment by the Subordinate Services Selection Board. This is indeed a wholly untenable contention. It is settled law that executive instructions cannot over-ride the statutory rule or to put in another way, they must give way to the statutory rule. Even otherwise, a plain reading of these instructions would reveal that no such situation was envisaged therein like the one arising in the present case, namely, determination of the inter se seniority of ad hoc employees whose services had been regularised and persons directly recruited after the date of the regularisation of the services or such employees. In our view, therefore, the learned Single Judge rightly held the petitioners to be senior to the private respondents. We, however, express no opinion on the other aspect adverted to by the learned Single Judge, that upon regularisation, the services of the petitioners, for purpose of a seniority would relate back to the date of their initial appointment. In the circumstances, we prefer to leave this question open to be dealt with in an appropriate case and therefore, the view of the learned Single Judge on this issue be not treated as a binding precedent." The State of Punjab preferred appeal before Honble the Supreme Court being SLP No.7513 of 1993 against the judgment dated 04.01.1993 passed in LPA No.555 of 1992. However, the said SLP was dismissed in limine on 16.07.1993. 5. Since the Honble Division Bench did not disturb the directions for redetermination of seniority, a Contempt Petition seems to have been filed by the writ petitioners therein for implementation of the judgment. With a view to implement the judgment, order dated 12.01.1994 (Annexure P-7) was passed proposing to redetermine the seniority in implementation of the judgment of learned Single Judge of this Court rendered in CWP No.2780 of 1980 and partly affirmed in L.P.A. No.555 of 1992. Objections were invited from the affected employees within 15 days. However, without waiting for the expiry of 15 days period for filing the objections, the State of Punjab issued the final seniority list vide its order dated 14.01.1994 and the petitioners were relegated to a position below various persons by granting the benefit of ad hoc service to the employees who were ordered to be regularised. These ad hoc employees were appointed as temporary Clerks for a period of six months vide memo dated 06.01.1976 (Annexure P-9) and were later regularised vide order dated 03.05.1977 (Annexure P-10) with effect from 01.04.1977. At the time of regularisation of these employees, their service conditions were regulated by the Government Notification dated 01.07.1952 whereby the Punjab Civil Secretariat (State Service Class-Ill) Rules, 1952 (hereinafter referred to as the "1952 rules"), were notified. Rule 9 of 1952 rules deal with the inter se seniority of the Members of the Service. The relevant extract of Rule 9 of the 1952 rules, is reproduced hereunder:- "Rule 9. The seniority inter se of members of the service holding the same class of post shall be determined by the date of their substantive appointment to such post." Rule 9 of 1952 rules was, however, amended on 10.08.1976. The amended rule, thus, reads as under:- "9. The seniority inter se of members of the service holding the same class of post shall be determined by the date of their substantive appointment to such post." Rule 9 of 1952 rules was, however, amended on 10.08.1976. The amended rule, thus, reads as under:- "9. The seniority inter-se of members of the service in each cadres shall be determined by the length of continuous service on a post in that cadre of the service: "Provided that in the case of members recruited by direct appointment who join within the period specified in the order of appointment or within such period as may from time to time be extended by the appointing authority subject to a maximum of four months from the date of order of appointment, the order of merit determined by the recruiting authority shall not be disturbed: Provided further that in case of a candidate is permitted to join the service after the expiry of the said period of four months in consultation with the . recruiting authority, his seniority shall be determined from the date he joins the service; Provided further that in case any candidate of the next selection has joined the service before the candidate referred to in the preceding proviso joins, the candidate so referred shall be placed below all the candidates of the next selection who join within the time specified in the first proviso", and Provided further that if one, two or more members are appointed on the same date, their seniority shall be determined as follows: (a) a member recruited by direct appointment shall be senior to a member recruited otherwise; (b) a member appointed by promotion shall be senior to a member appointed by transfer; ( c) in the case of members appointed by promotion or transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and (d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to member who was drawing higher rate of pay in his previous appointment; and if the rates of pay drawn are also the same then by their length of service in those appointments; and if the length of such service is also the same, an older member shall be senior to a younger member. Note: (1) This rule shall not apply to members appointed on purely provisional basis pending their passing the qualifying test." The petitioners have accordingly filed this petition challenging the orders dated 12.01.1994 and 14.01.1994, Annexure P-7 and P-8, respectively, whereby the seniority of the petitioners has been disturbed. 6. The State of Punjab in its reply has raised the only plea of implementation of the judgment rendered in CWP No.2780 of 1980 whereunder the benefit of ad hoc service has been given to the private respondents, though it is admitted that under the 1952 rules seniority was to be determined from the date of their substantive appointment. Identical relief is sought in CWP Nos.784, 2607 of 1994 and 2341 of 1995. 7. In CWP Nos.16925 of 2003 and 4490 of 1994, the writ petitioners were engaged on ad hoc basis during the years 1972 to 1975. They were also regularised vide order dated 03.11.1977 with effect from 01.04.1977 along with writ petitioners in CWP No.2780 of 1980-Malook Singh and others. The petitioners in these writ petitions were engaged on ad hoc basis prior to the writ petitioners in Malook Singhs case. They are also seeking the benefit of their ad hoc service towards seniority on the analogy of Malook Singhs case (supra). The factum of their ad hoc engagement is not disputed in the reply filed by the State. 8. The petitioners in CWP No. 18063 of 2004 were also engaged on ad hoc/ temporary basis as Clerks between the years 1972 to 1976, their names being sponsored by the different employment exchanges and on being selected by the Departmental Selection Committees consisting of three members namely, (i) Under Secretary to Government (Secretariat Administration), (ii) the Under Secretary (General), Punjab Civil Secretariat, Chandigarh and (iii) a Senior Superintendent of the Punjab Civil Secretariat. Their selection was for a period of six months or till the regular selection is made by the Punjab Subordinate Services Selection Board. It is admitted position that when these petitioners were engaged, Punjab Subordinate Services Selection Board was abolished by the Punjab Government vide its notification dated 12.08.1972 and was re-constituted vide notification dated 15.10.1974. After abolition of the Punjab Subordinate Services Selection Board, the Government had issued circular dated 06.09.1971 and the work of recruitment was entrusted to the Departmental Selection Committee. After abolition of the Punjab Subordinate Services Selection Board, the Government had issued circular dated 06.09.1971 and the work of recruitment was entrusted to the Departmental Selection Committee. On reconstitution of the Punjab Subordinate Services Selection Board, advertisement was issued to fill up the posts of Clerks occupied by the petitioners. The writ petitioners in this petition as also the the private respondent Nos.2,3,10,11, 12,13 and 23 applied for the posts. Selection was made on the basis of type test and interview. All the petitioners came to be selected and recommended for regular appointment, whereas the above named private respondents could not be selected. It is stated that the private respondents including the persons named hereinabove who were holding the posts of Clerks on ad hoc/temporary basis, came to be regularised under the Government policy/circular dated 03.05.1977 with effect from 01.04.1977. The private respondents filed CWP No.2780 of 1980. Only 27 respondents were arrayed in the said writ petition. As noticed hereinabove, CWP No.2780 of 1980 was allowed. All the writ petitioners are respondents in this case. The writ petitioners in this petition are claiming seniority over and above the private respondents on the basis of their length of service, both as ad hoc employees and as regular employees. A gradation list of the Clerks was issued on 31.12.1983. All the private respondents were shown junior to the petitioners. The petitioners in this writ petition were shown in the seniority list between serial Nos.120 to 219, whereas the private respondents were shown in the seniority list between serial Nos.229 to 323. However, by virtue of the order dated 14.01.1994, the petitioners have been rendered junior to the private respondents (writ petitioners in CWP No.2780 of 1980) by granting them benefit of deemed date of appointment. It is also relevant to note that the private respondents named hereinabove, failed to secure regular appointment in the selection process conducted by the Punjab Subordinate Services Selection Board but were also granted benefit of seniority on regularisation and placed over and above the present writ petitioners. 9. In the meantime, Mohinder Kaur and similarly situated other persons who were also engaged on ad hoc basis as stop-gap arrangement between the period 24.06.1970 to 17.12.1971, joined the office of the Punjab Civil Secretariat as Clerks and whose services were regularised with effect from 01.01.1973, were denied benefit of ad hoc service towards seniority. 9. In the meantime, Mohinder Kaur and similarly situated other persons who were also engaged on ad hoc basis as stop-gap arrangement between the period 24.06.1970 to 17.12.1971, joined the office of the Punjab Civil Secretariat as Clerks and whose services were regularised with effect from 01.01.1973, were denied benefit of ad hoc service towards seniority. They filed CWP No. 16488 of 1995. Respondent Didar Singh and Sulakshana Kapoor and similarly situated other persons who were granted the benefit of ad hoc service towards seniority, were also arrayed as respondents in the writ petition filed toy Mohinder Kaur and others. This writ petition was allowed by a learned Single Judge of this Court vide judgment dated 24.12.1997 on the basis of Malook Singhs case. Aggrieved of the judgment dated 24.12.1997, one Mehar Chand, preferred/Letters Patent Appeal No. 133 of 1998, which was allowed vide judgment dated 08.01.1999, with the following observations:- "In view of the various judgments referred to above, especially the judgment in Gurmail Singhs case, where Malook Singhs case was over ruled and further fact that in the Letters Patent Judgment in Malook Singhs case it was specifically observed that the same would not be cited as a precedent for the purpose as to whether ad hoc service is reckonable for purpose of seniority or not, we are of the view that the concession given by the State counsel on the basis of which the impugned judgment was given by the learned Single Judge was not correct in law. For the foregoing reasons, we allow these appeals and set aside the judgment of the learned Single Judge and also the show cause notices dated 20th April, 1998, issued to the appellants. However, we make no order as to costs. Sd/- R.S. Mongia, Judge January 08,1999 Sd/-V.S. Aggarwal, Judge" From the above observations, it appears that judgment in Malook Singhs case was later over ruled in Gurmail Singhs case. Against the aforesaid judgment of the Division Bench, SLP No.8534-35 of 1999 was filed by Mohinder Kaur and others (writ petitioners therein). The SLP was dismissed in limine on 19.07.1999. Sd/- R.S. Mongia, Judge January 08,1999 Sd/-V.S. Aggarwal, Judge" From the above observations, it appears that judgment in Malook Singhs case was later over ruled in Gurmail Singhs case. Against the aforesaid judgment of the Division Bench, SLP No.8534-35 of 1999 was filed by Mohinder Kaur and others (writ petitioners therein). The SLP was dismissed in limine on 19.07.1999. It is the case of the petitioners that despite the judgment dated 08.01.1999 in LPANo.133 of 1998, the seniority list issued pursuant to Malook Singhs case has not been revised and the private respondents have been promoted to the Posts of Superintendent Grade-ll and Superintendent Grade-I on the basis of their seniority determined vide the impugned order dated 14.01.1994. The petitioners in this petition have also challenged the promotion of private respondents. 10. From the above resume of factual background noticed from various writ petitions, following undisputed facts emerge :- 1. Judgment in Malook Singhs case in CWP No.2780 of 1980 has attained finality in respect to inter-se seniority of the writ petitioners and the respondents therein. 2. The petitioners in CWP Nos.1702, 784, 2607 of 1994 and 2341 of 1995 were not parties in Malook Singhs case, but the respondents in these writ petitions are the beneficiaries of Mallok Singhs case who were writ petitioners in that writ petition in whose favour the impugned orders dated 12.01.1994 and 14.01.1994 (Annexures P-7 and P-8 respectively) have been passed giving them seniority over and above the petitioners in these writ petitions. 3. The writ petitioners in CWP No.16925 of 2003 and CWP No.4490 of 1994 are seeking benefit of seniority on the basis of their ad hoc service on the analogy of Malook Singhs case. 4. In CWP No.18063 of 2004, the writ petitioners were the respondents in CWP No.2780 of 1980 (Malook Singhs case). 5. In CWP No.16488 of 1995 filed by Mohinder Kaur and others, judgment in Malook Singh case was followed by learned Single Judge but in LPA No.133 of 1998, decided on 08.01.1999, the judgment of writ Court was set aside refusing to follow Malook Singhs case having been over ruled in Gurmail Singhs case. The LPA judgment has been upheld in the Special Leave Petition in Mohinder Kaurs case. 11. The LPA judgment has been upheld in the Special Leave Petition in Mohinder Kaurs case. 11. A Full Bench of this Court in the case of Chambel Singh vs. State of Haryana and another, 1995 (1 )Recent Services Judgments, 382, while considering different opinions rendered by two different Division Benches of this Court in regard to grant of seniority by counting ad hoc service resolved the issued and held as under:- "17. Division Bench in Sohan Lals case (supra) after examining Rule 11 of the Haryana Food and Supplies Department Sub Offices (Group C) Services Rules, 1982 and in the light of the decision of the apex Court in Professor S.K. Sharmas case (supra) and in Masood Akhtar Khans case (supra) came to the conclusion that the service rendered on ad hoc basis is not to be counted towards seniority. However, the Bench left the question open whether ad hoc service will count for leave, increment and pension. This view is in conformity with the decision of the apex Court noticed above and is thus approved. "18. In view of what has been discussed above, we are of the view .that ad hoc service per se cannot be counted to determine appointees seniority in the cadre." A Division Bench of this Court in CWP No.9200 of 1993 (Gurmail Singh and others vs. The State of Punjab and others), decided on 21.07.1994, held Malook Singhs case not a correct law relying upon the judgment of the apex Court in the case of Direct Recruit Class II Engineering OfficersAssociations case, (AIR 1990, Supreme Court, 1607). Relevant observations of Court are:- "It is, thus, clear that the judgment in Malook Singhs case (supra) is based mainly on the Governments stand that regularisation of service of the ad hoc appointees shall be with retrospective effect and their seniority be determined vis-a-vis regularly appointed persons on that post. In addition, the learned Judge relied on the Supreme Court decision in Direct Recruit Class II Engineering Officers Associations case (supra). In our considered opinion after the subsequent decisions in Masood Akhtar Khans case (supra), Dr. In addition, the learned Judge relied on the Supreme Court decision in Direct Recruit Class II Engineering Officers Associations case (supra). In our considered opinion after the subsequent decisions in Masood Akhtar Khans case (supra), Dr. M.A. Haques case (supra), Keshav Chandra Joshis case (supra) and Aghore Naths case (supra), the principle that the ad hoc appointees are entitled to seniority on the basis of total length of service cannot be treated as correct and to this extent the judgment in Malook Singhs case (supra) cannot be regarded as correct daw. On the basis of the above discussion, we hold that a person appointed on ad hoc basis or a person appointed without following the procedure prescribed in the Rules is not entitled to the benefit of total length of service for the purpose of seniority even though he is subsequently regularised in service on the basis of a policy decision taken by the Government or on the basis of the amendment made in the rules. We further hold that even where an appointment on ad hoc basis is made after calling names from the employment exchange such ad hoc appointee will not be entitled to seniority over an employee recruited in accordance with the rules even if the service of ad hoc appointee is subsequently regularised." Later, a Division Bench of this Court in LPA No. 133 of 1998 (Mehar Chand vs. State of Punjab) decided on 08.01.1999, reported as 1999 (3) S.C.T. 162, followed the judgment rendered in Gurmail Singhs case, set aside the order of learned Single Judge in CWP No.16488 of 1995 filed by Mohinder Kaurs and others and refused to grant benefit of seniority by counting ad hoc service on regular basis. 12. In The Direct Recruit Class-ll Engineering OfficersAssociation and others vs. State of Maharashtra and others, AIR 1990, Supreme Court, 1607, it has been held:- "44. (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 the date of his confirmation. 12. In The Direct Recruit Class-ll Engineering OfficersAssociation and others vs. State of Maharashtra and others, AIR 1990, Supreme Court, 1607, it has been held:- "44. (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 the date of his confirmation. The corollary of 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 in such post cannot be taken into account for considering the seniority." In Davinder Bathla and others vs. Union of India and others, 1998 (3), RSJ 161, it is held as follows:- "6................ The post of Enquiry-cum-Reservation Clerk being a selection post, the persons like the appellants who were posted against those posts without going through the process of selection on ad hoc basis do not have a right to be in the cadre until and unless they are duly regularised after going through a process of selection. In the case in hand, the process of selection was made only in the year 1982 and the appellants have been absorbed in the cadres of Enquiry-cum-Reservation Clerks after being duly selected. In this view of the matter, the continuance on ad hoc basis from 1978 to 1982 cannot be counted for the purpose of their seniority in the cadre of Enquiry-cum-Reservation Clerk nor can they be held senior to the women candidates who were directly recruited as Enquiry-cum-Reservation Clerks under the changed policy by undergoing a process of selection In Keshav Chandra Joshi and others vs. Union of India and others, AIR 1991, Supreme Court, 284, it has been held as undents...............the appointment to a post must be according to rules and not by way of ad hoc or stop-gap arrangement made due to administrative exigencies. If the initial appointment thus made was de hors the rules, the entire length of such service cannot be counted for seniority. If the initial appointment thus made was de hors the rules, the entire length of such service cannot be counted for seniority. In other words the appointee would become a member of the service in the substantive capacity from the date of his appointment only if the appointment was made according to rules and seniority would be counted only from that date..........." "33.............Accordingly we have no hesitation to hold that the promotees have admittedly been appointed on ad hoc basis as a stop-gap arrangement, though in substantive posts and till the regular recruits are appointed in accordance with the rules. Their appointments are de hors the rules and until they are appointed by the Governor according to rules, they do not become the members of the service in a substantive capacity. Continuous length of ad hoc service from the date of initial appointment cannot be counted towards seniority.............." In the case of Union of India and another vs. Prof. S.K. Sharma, AIR 1992 Supreme Court 1188, it is held as under.- "8. In the circumstances mentioned above, we are clearly of the view that the respondent was not entitled to claim his seniority on the post of Professor (Senior Scale) from 28.9.1969 and the appellants had rightly counted his seniority from 29.9.1973 when he as regularly selected in accordance with the rules on the said post.........." In view of the above judgments, it is now a settled proposition that ad hoc service where initial appointment was without following due procedure in accordance with the mandate of Article 14 and 16 of the Constitution of India, de hors the rules is not to be counted for seniority. None of the ad hoc appointees in all these writ petitions claimed to have been appointed in accordance with law at the time of their initial ad hoc appointment i.e. by inviting applications through Public Notice and undergoing any process of selection. 13. To the contrary, it has come on record that some of the private respondents in CWP No. 10863 of 2004, did participate in the process of selection while working on ad hoc basis and failed but have been given the benefit of seniority by counting their ad hoc service. The respondents in the above mentioned Civil Writ Petition No.18063 of 2004 were, admittedly, writ petitioners in CWP No.2780 of 1980 (Malook Singhs case). The respondents in the above mentioned Civil Writ Petition No.18063 of 2004 were, admittedly, writ petitioners in CWP No.2780 of 1980 (Malook Singhs case). They have been granted seniority over and above the present writ petitioners on the strength of the judgment in Malook Singhs case which has attained finality upto the Honble Supreme Court. In fact, they are challenging the order dated 14.01.1994 which has been passed in implementation of the judgment in Malook Singhs case. The judgment in Malook Singhs case having attained finality, binds these writ petitioners, private respondents as also the State qua each other. In Naresh Shridhar Mirajkar and others vs. State of Maharashtra and another, AIR 1967 Supreme Court 01, Honble the Supreme Court held as under.- "We have referred to these decisions to illustrate how the jurisdiction to issue writs of certiorari has been exercised either by the High Courts under Art. 226 or by this Court under Art. 32. Bearing these principles in mind, let us enquire whether the order impugned in the present proceedings can be said to be amenable to the jurisdiction of this Court under Art. 32. We have already seen that the impugned order was passed by the learned Judge after hearing the parties and it was passed presumably because he was satisfied that the ends of justice required that Mr. Goda should be given protection by prohibiting the publication of his evidence in the newspaper during the course of the trial. This matter was directly related to the trial of the suit: and in exercise of his inherent power, the learned Judge made the order in the interest of justice. The order in one sense is inter parties, because it was passed after hearing arguments on both the sides. In another sense, it is not inter parties inasmuch as it prohibits strangers like the petitioners from publishing Mr.Godas evidence in the newspapers. In fact, an order of this kind would always be passed after hearing parties before the Court and would in every case affect the right of strangers like the petitioners work as Journalists, are interested in publishing court proceedings in newspapers. Can it be said that there is such a difference between normal order passed inter parties in judicial proceedings and the present order that it should be open to the strangers who are affected by the order to move this Court under Art. 32? Can it be said that there is such a difference between normal order passed inter parties in judicial proceedings and the present order that it should be open to the strangers who are affected by the order to move this Court under Art. 32? The order, no doubt, binds the strangers but nevertheless, it is a judicial order and a person aggrieved by it though a stranger, can move this Court by appeal under Art. 136 of the Constitution. Principles of res judicata have been applied by this Court under Art. 32 in Daryao vs. State of U.P., 1962(1) SCR 574. We apprehend that somewhat similar considerations would apply to the present proceedings. Jf a judicial order like the one with which we are concerned in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Art. 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Art. 32 and contend that a writ of Certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings." A Division Bench of this Court in the case of Sanjay Gulati vs. State of Haryana, 2002 (2) SCT 331, has held as under:- "3. The short question that arises for consideration before this Court is whether the respondents were justified in directing the recovery after the rights of the parties were fully determined vide judgment of Division Bench dated 12th March, 1997. There can be no other answer to the question aforestated in the negative. The rights of the parties were determined by the Division Bench of this Court. The said judgment became final, as it was not assailed by the respondents before the Honble Apex Court-by way of filing Special Leave Petition. Even if the principle enunciated was varied, the settled rights of the parties could not be disturbed except by filing proper review application or taking up the judgment of the Division Bench in appeal before the Honble Apex Court. Admittedly, none of the respondents were invoked by the State. Even if the principle enunciated was varied, the settled rights of the parties could not be disturbed except by filing proper review application or taking up the judgment of the Division Bench in appeal before the Honble Apex Court. Admittedly, none of the respondents were invoked by the State. Settled right could not be unsettled by the respondents unilaterally and that too without affording an opportunity of hearing to the petitioner." A Single Bench of this Court in the case of Satnam Singh vs. The Punjab State Electricity Board, 2009 (2) SCT 15, has held as follows:- "30. This plea of the learned counsel for the petitioner is also misconceived. It is also well settled law that the order which have attained finality cannot be set aside by change of law subsequently." 14. It is, thus, settled position in law that the rights of the parties once determined by a concluding judgment inter se, cannot be re-opened merely on account of change in law. Not only this, in the case of S.R. Bhagwat vs. The State of Mysore, 1995 (4) SCT 601, Honble Supreme Court has even held that where the concluding judgment binds the rights of the parties, it cannot even be nullified by a subsequent enactment. The relevant observations are as under:- "12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance over-rules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformity applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments." Thus, the legal phenomena of these judgments lead to the only conclusion that the rights of the parties in Malook Singhs case having been determined finally, cannot be re-opened and re-determined in any manner notwithstanding the legal position settled thereafter or even if there was different legal position at the time the rights of the parties became final. Petitioners in Civil Writ Petition No. 18063 of 2004, who were respondents in Malook Singhs case, have no right to challenge the impugned order dated 14.01.1994 whereby there seniority has been re-determined in implementation of the judgment in Malook Singhs case (CWP No.2780 of 1980). This writ petition is, thus, dismissed with no order as to costs. 15. Petitioners in Civil Writ Petition Nos.1702, 784, 2607 of 1994 and Civil Writ Petition No.2341 of 1995 are aggrieved of the order dated 12.01.1994 whereby notice has been issued to them for change of their seniority to their detriment allegedly to implement the judgment in Malook Singhs case and order dated 14.01.1994 whereby seniority of the petitioners has been refixed pending decision of the contempt petition and these petitioners have been relegated to a lower position in the seniority as against the private respondents in these petitions on account of the implementation of the judgment in Malook Singhs case. It is necessary to observe that these petitioners were not parties in Civil Writ Petition No.2780 of 1980 (Malook Singhs case). Vide notice dated 12.1.1994 (Annexure P-7) objections were invited from them within a period of 15 days. However, without waiting for their objections, the impugned order dated 14.01.1994 (Annexure P-8) came to be passed redetermining their seniority qua the private respondents in view of the judgment rendered in Malook Singhs case. It is also pertinent to mention that a subsequent Division Bench of this Court in Gurmail Singhs case (supra) held Malook Singhs judgment not to be a correct law. Otherwise also in view of the Full Bench judgment of-this Court in Chambel Singhs case and the ratio of various judgments of Honble the Apex Court including the Constitution Bench judgment in Direct Recruits Class II Engineering Officers Associations case (supra), noticed herein above, ad hoc service is not to be counted for grant of seniority where the initial recruitment was de hors the rules. 16. In the present cases, some of the private respondents who were beneficiaries of ad hoc service are not entitled to claim seniority over and above the petitioners who were appointed by due process of selection by Recruitment Board in consonance with the mandate of Article 14 and 16 of the Constitution of India in implementation of Malook Singhs judgment which does not bind the petitioners in these writ petitions. These writ petitions are, thus, allowed. These writ petitions are, thus, allowed. The impugned Notice dated 12.01.1994 (Annexure P-7) and the impugned seniority list dated 14.01.1994 (Annexure P-8) are hereby quashed qua these writ petitioners and their seniority position prior to the impugned seniority shall be restored forthwith. 17. Petitioners in Civil Writ Petition No. 16925 of 2003 and 4490 of 1994 were engaged on ad hoc basis and thereafter regularized with effect from 01.04.1977 along with writ petitions in Malook Singhs case (CWP No.2780 of 1980). They are claiming the benefit of Malook Singhs case for annexing their ad hoc service towards the total length of service for counting their seniority in the cadre of service. Admittedly, they were not parties in Malook Singhs case which has been held not to be a correct law. In view of the settled proposition of law referred to above, for determining the seniority, these writ petitioners cannot claim benefit of their ad hoc service for counting their seniority on the analogy of Malook Singhs case. 18. Mr.R.N. Raina, learned counsel submits that these writ petitioners are entitled to claim parity being similarly situated with writ petitioners in Malook Singhs case. His further contention is that all similarly situated persons are to be granted benefit of seniority. I am unable to accept this contention of Mr. Raina. The petitioners being not parties in Malook Singhs case, are not entitled to benefit of judgment which is available only for the writ petitioners therein on account of finality of the judgment. However, on a question of law, the petitioners in these petitions have no right to claim seniority over and above the directly recruited members of the service. It is equally settled law that Article 14 of the Constitution of India, carries a positive concept. The concept of parity does not operate to perpetuate an illegality rather where the outcome of equality and parity is to perpetuate an illegality, it is impermissible even under Article 14 of the Constitution of India itself. 19. In the case of Chandigarh Administration and another vs. Jagjit Singh and another, JT 1995(1) SC 445, and laid down the law in the following words:- "8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious-that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent- authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/ unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law, but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law." 20. The Supreme Court again examined a similar issue in M/s Faridabad Ct Scan Centre vs. D.G. Health Services and Ors., J.T., 1997 (8) SC 171 held as under- "3. It will be a negation of law and the rule of law." 20. The Supreme Court again examined a similar issue in M/s Faridabad Ct Scan Centre vs. D.G. Health Services and Ors., J.T., 1997 (8) SC 171 held as under- "3. We fail to see how Article 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and, therefore, there will be discrimination against others if correct orders are passed against them. In fact, in the case of Union of India (Rly. Board) & Ors. vs J.V.Subhaiah and Ors., 1996 (2) SCC 258, the same learned Judge in his judgment has observed in para 21 that the Principle of quality enshrined under Article 14 does not apply when the order relied upon is unsustainable in law and is illegal. Such an order cannot form the basis for holding that other employees are discriminated against under Article 14......" 21. Thus, the petitioners in these writ petitions have no right to claim benefit of Malook Singhs case even if they are similarly or better placed. These writ petitions are, accordingly, dismissed, with no order as to costs.Petition dismissed.