9911796707
TMI Blog2021 (9) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... hoc appointments were resorted to by various appointing authorities in "administrative interest" after notifying the vacancies to the employment exchange or, as the case may be, by issuing advertisements. Since the ad hoc employees had acquired experience, and their ouster after a considerable period of service would entail hardship, their services were regularized, subject to certain terms and conditions. Clause (5) of the policy on regularization contained the following stipulations: "5. The seniority of the ad hoc employees whose appointments are regularized in terms of the above policy shall be determined in the following manner:- a) After approval by the Appointing Authority the regularization of their appointments shall date back to 1st April, 1977 from which date their seniority shall be determined vis-à-vis candidates appointed on regular basis after selection through the prescribed agencies; (b) The service rendered on ad hoc basis shall be taken into account for purposes of determining inter se seniority among the ad hoc employees themselves and a person having a longer service shall be senior and if the date of appointment on ad hoc basis is the same, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining seniority and other benefits. The petition was allowed in the above terms. 7. The judgment of the Single Judge was carried in a Letters Patent Appeal by the State of Punjab. The Division Bench, by its judgement dated 4 January 1993, held that the Single Judge was justified in coming to the conclusion that persons who had been regularized with effect from 1 April 1977 would rank senior to those who had been recruited after their date of regularization and to that extent the petitioners before the Single Judge had been correctly held to be senior to the private respondents. Having held this, the Division Bench however clarified that it was expressing no opinion on the second aspect which was adverted to by the Single Judge namely, that upon regularization, the services of the petitioners for the purpose of seniority would relate back to the date of their initial appointment. This question was left open to be dealt in an appropriate case with a clarification that the judgment of the Single Judge would not be treated as a binding precedent. 8. The Special Leave Petition SLP (C) No 7513 of 1993 against the judgment of the Division Bench was dismissed by this Court on 16 July 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 July 1999. After adverting to these developments, the Single Judge came to the conclusion that it was a well settled principle that where the initial appointment is made without following due procedure in accordance with the mandate of Articles 14 and 16, ad hoc service would not count for the determination of seniority. The Single Judge held that the decision in Malook Singh's case having attained finality would bind the State, the petitioners and the private respondents who were parties to that proceeding. The rights of parties which were determined by a conclusive judgment could not be thus reopened as between the parties to that proceeding. Consequently, the Single Judge held that as between the parties to the decision in Malook Singh's case, the judgment would be treated as final and binding. On the other hand, the persons who were appointed by a due process of selection and were not parties to the earlier proceedings in Malook Singh's case would not be bound by the decision. 10. Following the judgment of the Single Judge, Letters Patent Appeals LPA Nos 471, 472 and 476 of 2011 were carried to the Division Bench. The Division Bench by its judgment and order dated 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently disapproved in another judgment of High Court; and (iv) In consequence, insofar as the State is concerned, it would be bound to give effect to the decision in Malook Singh and at this stage, all that the appellants would seek is that their pensionary payments be duly protected. 13. On the above premises, Mr Patwalia, learned senior counsel submits that at this length of time, it would be manifestly in the interest of justice if the pensionary benefits which are being drawn by the appellants are protected and a direction is issued by this Court in the exercise of its jurisdiction under Article 142 of the Constitution restraining the State from making any recoveries in respect of the payments which have already been made. 14. Ms Anusha Nagarajan, counsel appearing on behalf of the State of Punjab has on the other hand, urged the following submissions: (i) Though the judgment of the Single Judge in Malook Singh's case had held that the benefit of ad hoc service must be counted for the purpose of determining seniority of those who are regularized with effect from 1 April 1977, this was specifically kept open by the Division Bench in the Letters Patent Appeal and as a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. In the counter affidavit which has been filed in these proceedings on their behalf, it has been stated that the policy of the State of Punjab dated 3 May 1977 regularizing the services of the ad hoc employees with effect from 1 April 1977 clarified that seniority shall be determined with effect from that date. During the period from 1 April 1977 (the effective date of regularization) and 3 May 1977 (the date of issuing the order for regularization), some clerks had joined on different dates on the recommendations of the PSSSB. Though the recommendations of the PSSSB were made on diverse dates between December 1976 and April 1977, they had joined service before the issuance of the notification of regularization in the cadre of clerks as it stood on 31 December 1978. On these grounds, it has been submitted that the appellants ought not to rank higher in seniority on the basis of the length of ad hoc service. 17. Mr Surjit Singh Swaich, learned counsel has appeared on behalf of a batch of persons who were petitioners before the High Court in another batch of writ petitions CWP No 16925 of 2003 and CWP No 4490 of 1994.. It may be noted at this stage, that they had sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ad hoc service can be counted for the purpose of determining seniority has been settled by this Court in multiple cases. In Direct Recruits (supra), a Constitution Bench of this Court has observed: "13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan case [(1977) 3 SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR 775] was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iority while interpreting the Uttar Pradesh Regularization of Ad Hoc Appointment Rules. This Court noted that under the applicable Rules, "substantive appointment" does not include ad hoc appointment and thus seniority which has to be counted from "substantive appointment" would not include ad hoc service. This Court also clarified that the judgement in Direct Recruits (supra) cannot be relied upon to confer the benefit of seniority based on ad hoc service since it clearly states that ad hoc appointments made as stop gap arrangements do not render the ad hoc service eligible for determining seniority. This Court speaking through Justice MR Shah made the following observations: "36. The sum and substance of the above discussion would be that on a fair reading of the 1979 Rules, extended from time to time; initial appointment orders in the year 1985 and the subsequent order of regularization in the year 1989 of the ad hoc appointees and on a fair reading of the relevant Service Rules, namely Service Rules, 1993 and the Seniority Rules, 1991, our conclusion would be that the services rendered by the ad hoc appointees prior to their regularization as per the 1979 Rules shall not be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' Assn. (supra) was considered by this Court in the case of Santosh Kumar (supra) when this Court interpreted the very 1979 Rules." The notification dated 3 May 1977 stated that the ad hoc appointments were made in administrative interest in anticipation of regular appointments and on account of delay that takes place in making regular appointment through the concerned agencies. In this regard, the vacancies were notified to the Employment Exchange or advertisements were issued, as the case maybe, by appointing authorities. The appointments were not made on the recommendation of the Punjab Subordinate Service Selection Board. However, subsequently a policy decision was made to regularize the ad hoc appointees since their ouster after a considerable period of service would have entailed hardship. Thus, the initial appointment was supposed to be a stop gap arrangement, besides being not in accordance with the rules, and the ad hoc service cannot be counted for the purpose of seniority. 21. Now the question that remains is that who would be bound by the judgement given in Malook Singh judgement which was subsequently overruled in Gurmail Singh. In State of Rajasthan v. Nemi Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Having resolved the above issue, as a matter of principle, the Court is then left with moulding the relief. Both the appellants and the private respondents, as well as the appellants in the companion appeals have from time to time received their promotions during the pendency of these proceedings and have retired from service. Some among them have retired nearly a decade ago. There may be some merit in the submissions which have been urged by Mr P S Patwalia, learned senior counsel that the judgment in CWP No 2780 of 1980 must govern those who are parties to the proceedings and cannot be resiled from by the State which was bound by the ultimate direction. Recasting the seniority of persons who have retired from service after receiving promotions and reworking the dates of notional promotion at this stage for the entire cadre going back all the way to 1 April 1977 is a daunting exercise for the State of Punjab. This is a point which was emphasized by Ms Anusha Nagarajan in the course of her submissions. Revising the seniority at this length of time would cast an insuperable burden on the State. During the pendency of these proceedings, an exercise was directed to be conducted on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
