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2019 DIGILAW 1637 (PNJ)

Santosh Nain v. State of Haryana

2019-05-20

ARUN PALLI, KRISHNA MURARI

body2019
JUDGMENT : Krishna Murari, J. 1. Delay of 24 days in filing the appeal is condoned for the reasons stated in CM-1650-LPA/2019 and the same stands disposed of. LPA-690/2019: 2. This intra-Court appeal under clause-X of the Letters Patent is directed against the judgment and order dated 01.08.2018 passed by learned single Judge whereby writ petition filed by the appellant-petitioner claiming seniority and challenging the promotion order dated 04.06.2013 passed by Departmental Promotion Committee was dismissed. 3. The grievance of the appellant-petitioner was that she was appointed as Supervisor in the office of erstwhile Social Welfare Department on 27.03.1987 purely on ad hoc basis. Her services were regularised with effect from 01.01.1991 and her name figured at serial No. 248 in the seniority list, whereas, the persons at serial No. 101 to 131, who were recommended by the Subordinate Services Selection Board on 29.07.1988 and those at serial No. 132 to 137, who were appointed on ad hoc basis and regularized with effect from 30.09.1988, were placed above her. 4. The learned single Judge dismissed the claim of the petitioner claiming seniority relying upon a judgment of the Hon'ble Supreme Court in the case of State of Haryana and Others vs. Vijay Singh and Others, AIR 2012 SC 2901 , wherein, in identical facts and circumstances, the Hon'ble Apex Court held in paragraph-22 as under:- "22. In State of Haryana vs. Haryana Veterinary & AHTS Association and Others, (2000) 8 SCC 4 , the three Judge Bench considered the question whether the ad hoc service rendered by the respondents in the cadre of Assistant Engineers can be added to their regular service for the purpose of higher pay scale. In State of Haryana vs. Haryana Veterinary & AHTS Association and Others, (2000) 8 SCC 4 , the three Judge Bench considered the question whether the ad hoc service rendered by the respondents in the cadre of Assistant Engineers can be added to their regular service for the purpose of higher pay scale. While reversing the judgment of the majority of the Full Bench which had ruled in favour of the writ petitioner and declared that ad hoc service was to be clubbed with the regular service for the purpose of grant of financial benefits, this Court held: "A combined reading of the aforesaid provisions of the Recruitment Rules puts the controversy beyond any doubt and the only conclusion which could be drawn from the aforesaid Rules is that the services rendered either on an ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay or of the selection grade under the government memorandum dated 2-6-1989 and 16-5-1990 and therefore, the majority judgment of the High Court must be held to be contrary to the aforesaid provisions of the Recruitment Rules, consequently cannot be sustained. The initial letter of appointment dated 6-12-1979 pursuance to which respondent Rakesh Kumar joined as am Assistant Engineer on an ad hoc basis in 1980 was also placed before us. The said appointment letter unequivocally indicates that the offer of appointment as Assistant Engineer was on ad hoc basis and clauses 1 to 4 of the said letter further provides that the appointment will be on an ad hoc basis for a period of 6 months from the date of joining and the salary was a fixed salary of Rs. 400 p.m. in the scale of Rs. 400 to Rs. 1100 and the services were liable to be terminated without any notice and at any time without assigning any reason and that the appointment will not enable the appointee any seniority or any other benefit under the Service Rules for the time being in force and will not count towards increment in the time scale. 400 to Rs. 1100 and the services were liable to be terminated without any notice and at any time without assigning any reason and that the appointment will not enable the appointee any seniority or any other benefit under the Service Rules for the time being in force and will not count towards increment in the time scale. In view of the aforesaid stipulations in the offer of appointment itself we really fail to understand as to how the aforesaid period of service rendered on ad hoc basis can be held to be service on regular basis. The conclusion of the high Court is contrary to the very terms and conditions stipulated in the offer of appointment and, therefore, the same cannot be sustained." 5. It is undisputed that the tentative seniority list was circulated on 06.06.2006 inviting objections and the appellant-petitioner never raised any objection with respect to her placement in the tentative seniority list. Thereafter, final seniority list was circulated vide letter dated 12.01.2010. It was only after three years of the finalization of seniority list the appellant-petitioner approached this Court raising the grievance. 6. It may also be relevant to extract here rule 11 of the Haryana Women and Child Development Department (Group-C) Service Rules, 1997, which reads as under:- "Seniority, inter se of members of the service shall be determined by the length of continuous service on any post in the service: Provided that where there are different cadres in the service, the seniority shall be determined separately for each cadre: Provided further that in the case of members appointed by direct recruitment, the order of merit determined by the board or any other recruiting authority, shall not be disturbed in fixing the seniority." 7. Concededly, the appellant-petitioner was never appointed by any recruiting authority. Thus, in view of third proviso to the rule 11, she cannot be given seniority over and above those who have been appointed by the Subordinate Services Selection Board or any other recruiting authority. Concededly, the appellant-petitioner was never appointed by any recruiting authority. Thus, in view of third proviso to the rule 11, she cannot be given seniority over and above those who have been appointed by the Subordinate Services Selection Board or any other recruiting authority. Learned counsel for the appellant-petitioner tried to distinguish the judgment of the Hon'ble Apex Court in the case of Vijay Singh and Others (supra) by urging that since in that case the recruitment was made by inviting applications through Employment Exchange, whereas, in the case of the appellant-petitioner the appointment was made by inviting applications from open market as well, therefore, the said judgment would not be applicable. 8. In our considered opinion, this cannot be a distinctive feature so as to distinguish the judgment. It is the law laid down by the Hon'ble Apex Court that any appointment made purely on ad hoc basis cannot be treated as service on regular basis for getting the benefits of seniority and pay fixation. The distinction being tried to be drawn by learned counsel for the appellant is illusory and is not liable to be accepted. The case in hand is identical to the one before the Hon'ble Supreme Court and there exists no plausible reason to deviate from the view taken by the Hon'ble Apex Court. 9. Learned counsel for the appellant further argued that in the case of an identically situated employee, she was extended the benefits in question pursuant to a decree passed by the civil court and, thus, the appellant-petitioner is being discriminated. 10. The argument is totally misconceived for more than one reason. Firstly, the appellant- petitioner cannot claim parity with an employee who received the benefit under a civil court decree. Secondly, no details of the said case are reflected from the judgment of the learned single Judge and, moreover, a decree passed in a suit cannot stand against the law laid down by the Hon'ble Apex Court. 11. In such view of the matter, we see no good ground to take a view different from the one taken by learned single Judge. The appeal is devoid any merits and accordingly stands dismissed.