Punjab State Electricity Board vs Bimal Kumar

Swatanter Kumar, J.—The Punjab State Electricity Board has preferred this Regular Second Appeal against the judgment and decree passed by the learned Additional District Judge, Amritsar dated 7th May, 1992.

The learned Courts below have arrived at a concurrent view that the plaintiffs in these suits were entitled to take benefits of their ad hoc appointment (temporary service) with effect from 15.12.1973 to 1.10.1980 and 2.9.1977 to 4.10.1978 as service rendered on regular basis.

This concurrent view of the courts below have been challenged by the appellant before this Court on the grounds that :-

(1) the suit of plaintiff was barred by lime, as such, relief prayed by him could not have been granted.

(2) the service rendered by the plaintiff from 15.12.1973 till 1.10.1980 was ad hoc purely temporary, as such, the same could not be counted towards the regular service; and

(3) the suit was liable to be dismissed for non-joinder of necessary parties.

The plaintiff has not challenged the circular dated 14.12.1981 even till date, vide which the seniority of the plaintiffs cadre was fixed and promotion granted.

On the other hand, learned Counsel for the respondent contends that the objections raised by the appellant are without any substance and the judgment and decree of the courts below is in consonance with the settled principle of law.

In order to appreciate the merits of the respective contentions raised on behalf of the parties, reference to the basis necessary facts would be inevitable. Plaintiff Rajinder Pal Singh had filed a suit for declaration. He stated that he joined as a Linesman in the Punjab State Electricity Board on 15.12.1973, as per the letter of appointment dated 15.12.1973 on temporary basis. The services of the plaintiff were regularised vide order dated 1.10.1980. There was no break in his service and no advere remarks ever were communicated to him during the earlier period of his appointment. The plaintiff presses upon the respondent to consider his claim for seniority by granting benefits to him in the service from 1973-1980. According to the plaintiff, this reason was not acceded to by the defendant, resulting in filing of the suit on 6.10.1986. The defendants-Punjab State Electricity Board contested the suit. They took various objections in regard to the maintainability of the suit and also denied that the plaintiff joined as Linesman on 15.12.1977. However, regularisation of the plaintiff on 1.10.1981 was not disputed. According to the defendants, there was no provision and in law he was not entitled to the benefits of the temporary service rendered by him towards seniority, promotion and alike matters.

On the pleadings of the parties, the learned trial Court framed the following issues :-

" 1. Whether the order dated 4.10.1978 challenged in the suit is null and void for the reasons stated in the plaint ? OPP.

Whether the suit is within limitation ?OPD

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff has locus standi to file the suit ? OPD

Relief.

The learned trial Court, vide its judgment and decree dated 2.11.1988, decree the suit of the plaintiff. The appeal preferred by the Punjab State Electricity Board, as already noticed, was dismissed by the learned first appellate court, vide judgment and decree dated 7th May, 1992, giving rise to this Regular Second Appeal.

Firstly, I would proceed to discuss 2nd contention raised by the learned Counsel for the appellant, as determination thereof would help the crystallising the real controversy in the present case. For the purpose of referring to the evidence, I would refer to there-cords of Bimal Kumar R.S.A No. 247 of 1991 and Rajinder Pal Singh R.S.A. No. 1912 of 1992 respectively.

As is clear from the above narrated pleadings of the parties, there is no dispute that the respondents were appointed on ad hoc basis initially and they have been issued appointment letters subsequently. The respondents claimed that the services rendered by them on ad hoc basis be counted towards regular service for all purposes and intents. On this premise, Bimal Kumar prayed for quashing of order dated 4.10.1998, while Rajinder Pal Singh has prayed simplicitor that services rendered by him from 15.12.1973 to 1.10.1980 should be counted.

Bimal Kumar was offered the appointment to the post of Lineman on ad hoc basis, vide letter dated 2.9.1977, exhibit P. 1. Relevant part of the letter dated 2.9.1977 reads asunder:

"With reference to your application for employment in the Punjab State Electricity Board you are hereby offered the post of Ad hoc Lineman on a scale of Rs. 110/-(Rs. One hundred ten) P.M. in the scale of Rs. 110-5-130/7-200/10-300. You will be granted such allowances as may be in force from time to time.

It should be already understood that this appointment is on ad hoc basis and that you services will be terminated without any notice." 12. Vide letter dated 4.10.1978 exhibit P-2, Bimal Kumar-respondent herein was appointed admittedly on regular basis in the regular pay scale and was to be on training for a period of three months. The relevant clause of this letter reads as under: "With reference to you application for employment in the Punjab State Electricity Board, you are hereby offered the post of Offg. Lineman on a scale of Rs. 110/- (Rs. One Hundred and Ten Only) in the pay scale of Rs. 110-5- 130/7/200-10-300. You will be granted such allowances as may be in force from time to time subject to the conditions that above regular scale will be granted to you after the successful completion of three months. During first three months period you will be paid @ Rs. 100/- (Rs. One hundred only) plus allowances as admissible thereon. In case you do not complete three months training period successfully, your service shall be terminated without notice."

There is no dispute to the fact that with effect from 4.10.1978, Bimal Kumar has been given benefit of regular service. The Board had issued seniority list of the Lineman on 27th March, 1981, vide exhibit P.3/D. wherein seniority of all the respondents to these appeals have been shown, as per their regular service being rendered from the date on which the letters of appointments were issued. From the issuance of the said seniority, the respondents took no steps except for filing the representation much later and then instituted the present suit, out of which the present Regular Second Appeals has arisen.

Respondents herein placed no documentary evidence on record to show that they were issued appointment letters on regular service on 4.10.1978 or October, 1980. Respondents just examined themselves as their witnesses and closed their evidence. A bare reading of the letters issued to the respondents show that they were appointed initially without following any process of selection/Selection Committee. It is not even pleaded by the respondents in the plaint that they were appointed in accordance with the rules and upon following the procedure prescribed. It is also not averred that they were not issued any document showing statutory deduction and the process of their initial appointment was otherwise fair and upon granting chance to all eligible persons. The letters of appointment speak themselves that the respondents were appointed on ad hoc basis and their services were purely temporary terminable without notice. The respondents took the benefits of the said letter and continued to serve for a considerable period without demur or protest and raising even the claim that their services be regularised. It is only when after years of letter dated 4th October, 1978 or alike letters were issued that the respondents thought of raising this claim.

Learned Counsel appearing for the Board relied upon judgments of the Hon''ble Supreme Court in the case of Davinder Bathia and others v. Union of India and others 1998(5) S C C 282 : 1998(3) SCT 104(SC), Dr. Anuradha Bodi and Others Etc. Etc. Vs. Minicipal Corporation of Delhi and Others, and a Full Rench judgment of this Court in the case of Rakesh Kumar Singla v. State of Haryana through Financial Commissioner, Irrigation and Power, Civil Secretariat, Chandigarh and another 1995(3) P.L.R. 411 : 1995(4) SCT 285 (P&H (FB), to contend that this period cannot be counted towards regular service, while learned Counsel appearing for the respondents relied upon the case The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, and Municipal Corporation v. Surender Kumar Arora 2000(2) S.C. T 880 to contend to the contrary.

It is settled principle of law that the ad hoc initial appointment has to be made in accordance with the rules and by following a fair procedure prescribed thereunder. Discretionary appointment made in arbitrary way, normally would not and should not be permitted to be counted towards regular service. Fairness in administrative action is of paramount consideration and appointment should be in corisdnance with the rules to entitle a person to claim the benefit of regularisation for all purposes and intents from the date of its initial appointment. Reference can be made to the law settled by the court in the aforementioned cases.

In the case of Davinder Bathia and others (supra), the Hon''ble Supreme Court held as under:

"In view of the rival submissions at the Board (Bar ?), the only question that arises for our consideration is: whether the ad hoc continuance of the appellants in the cadre of Enquiry-cum-Reservation Clerk can be counted for the purpose of seniority in the cadre, even though they were regularly absorbed by a process of selection only in the year 1982.

In the case in hand, this process of selection was made only in the year, 1982 and the appellants have been absorbed in the cadre of Enquiry-cum-Reservation Clerks after being duly selected. In this view of the matter, their continuance on ad hod 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."

Further, in the case of Dr. Anuradha Bodi, the Hon''ble Supreme Court held as under :-

" 10. The propositions laid down by the Constitution Bench in the aforesaid case are set out in para 47 of the judgment. We are concent with only Conclusions (A) and (B) which reads as follows (SCC p. 745):

"(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.

(B) If the initial appointment, is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop- gap arrangement and not according to rules.

Though the recruitment rules came into force on 6.8.1982, the appointments were not made in accordance therewith. They were ad hoc and made as a stop- gap arrangement. The orders themselves indicated that for the purpose of regular appointment the petitioners were bound to pass the UPSC examination in the normal course in the direct competition. Hence the petitioners will not fall under the main part of Conclusion (A) or Conclusion (B) as contended by the learned Counsel for the petitioners."

Even in the case of The Direct Recruit Class-II Engineering Officers'' Association''s case (supra) the Hon''ble Supreme Court held as under :-

"Once 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.

Where initial appointment is not made by following the procedure laid down by the rule but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."

Thus, reliance placed by the respondent on the above judgment clearly places an onus on them to show to the court that their appointment was in accordance with the rules. A Full Bench of this court in the case of Chambel Singh v. The State of Haryana and another 1995(1) S.L.R. 1 : 1994(4) SCT 800 (P&H (FB), while answering the question in regard to counting of ad hoc service for determining the seniority held as under:

"17. Division Bench in Sohan Lal''s case (supra) after examining Rule 11 of the Haryana Food and Supplies Department Sub Offices (Group C) Service Rules, 1982, and in the light of the decision of the Apex court in Professor S.K. Sharma''s case (supra) and in Masood Akhtar Khan''s case (supra) came to the conclusion that the service rendered on ad hoc basis is not to be counted for 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.

In view of what has been discussed above, we are of the view that ad hoc service per se cannot be counted to determine appointee''s seniority in the cadre."

The view expressed in Chambel Singh''s case was followed (in para 42 to end) by the majority view taken by another Full Bench of this court in the case of Rakesh Kumar Singla''s case (supra). Applying the above aid principles to the facts of the present case, it is clearly thai the respondents were given ad hoc appointment on temporary basis and no prescribed process of selection was followed nor all eligible persons were considered for such appointment. The respondents took advantage of their appointment without protest and demur for a considerable period and instituted the suit in the year 1986 that too after issuance of seniority list in the year 1981.

The judgment in the case of Surender Kumar Arora (supra) again is of no consequence because the plaintiff in that case was appointed against vacant regular post, though on ad hoc basis and the evidence in that ease was appreciated by the Hon''ble Bench as to satisfy the ingredients prescribed in Chambel Singh''s case (supra). Thus, that judgment is of no help to me respondents in the present case.

The learned first appellate court in its judgment has itself noticed that "there was no right vested in the plaintiff to be appointed on regular basis. Once he was appointed on regular basis and there was no break in service then his appointing authority was required to count his temporary service for the purpose of promotion and seniority." Having noticed this principle, the learned Court has not mentioned any evidence on the basis of which it has construed that thetemporary service rendered by the respondents was liable to be counted towards their regular service.

In these circumstances, I am of the considered view that the learned Courts below have not correctly applied the law settled by the Hon''ble Apex Court for granting the benefits of regular service to the respondents herein from the date of their initial appointment, which was purely temporary. Thus, the submissions of the Board in this regard merit acceptance.

As far as the first contentions it concerned, the suits have been instituted by the respondents from 1986 to June, 1987 and even thereafter. Learned Counsel appearing for the appellant contended that the seniority list was circulated on 27th March, 1981 and 14th December, 1981. All the respondents had full knowledge of the said seniority list but they have filed the suit, as noticed above, on 9th June, 1987. The order of appointment was admittedly issued to these respondents in the year 1978 and 1980. Such cause of action for individual or independent relief cannot be termed as recurring cause of action. Other employees have already been declared senior to the respondents and they have been granted even promotion. Thus, it would neither be just nor fair to permit the present respondents to take advantage of their own wrong and delay even if it is held that the suit is not hit by limitation. Thus, to my mind, the suit of the plaintiffs in challenging the order of their appointment issued in the year 1978-1980 and in the year 1986-1987 are patently barred by time.

In the last, now I take up the third contention raised by the appellant that the suit was bad for nonjoinder of necessary parties. The learned Counsel for the appellant thirdly contended that the suit filed by the appellant was bad for non-joinder of necessary parties. According to him, the persons whose seniority was likely to be affected by the decision of the suit ought to be heard prior to passing such orders because if the plaintiffs succeed they will supersede a number of persons and may even affect their promotion. For this purpose, he relied upon a Division Bench judgment of this court in the case of Jaswinder Singh Passi v. The Registrar, Cooperative Societies, Punjab and others 1998(5) S.L.R. 244 and Jatinder Kumar and others v. State of Haryana and others 1991(5) S.L.R. 748, B.P, Chadasama v. State of Gujarat and others 1998 (5) 290 : 1998(3) SCT 598 (Guj) and Davinder Bathia and Others Vs. Union of India and Others, .

On the other hand, learned Counsel for the respondents has relied upon the judgment of the Hon''ble Supreme Court in the case of V.P. Shrivastava and others v. The State of M.P. and others 1996(1) S.L.R. 819 : 1996(2) SCT 192 (SC)), to contend that wherever the plaintiff is not challenging the ad hoc promotion but the position of the said ad hoc promotees in the seniority list, then it is not obligatory upon him to implead the said parties as defendant to the suit.

I am of the considered view that the case of Shri V.P. Srivastava (supra) is not of any help to the respondents as the principle of determination of seniority adopted by the Government is neither under challenge nor questioned. In other words, it is a letter of appointment of an individual, the validity and effect whereof has been challenged in the suits, but obvious result thereof would be disturbing the seniority list pre-pared by the State Government as back as in the year 1981. It was contended by the appellant that various persons have been given promotion not only on ad hoc basis but even on regular basis during this intervening period of seven years. The respondents cannot be permitted to take advantage of their own wrong and disturb the established seniority since 1981. Admittedly, letters of appointment were issued to the respondents in the year 1978-80 while seniority list was issued more than a year/years thereafter, giving ample opportunity to the respondents to challenge the said seniority list. However, the respondents opted to keep quiet for a considerable period. The persons whose seniority is bound to be affected by decreeing the suit have not been impleaded as parties to the suit.

At this stage, it may be relevant to refer to a very recent judgment of the Supreme Court in the case of State of Bihar and others v. Kameshwar Prasad Singh and another 2000(2) R.S.J. 71 : 2000(2) SCT 889 (SC)). In this case, amongst other questions the Hon''ble Apex Court also decided the question whether persons whose seniority is likely to be affected should normally be impleaded as party to the petition or not. The Apex Court after discussing the law in detail held as under :-

"It is thus evident that Brij Bihari Prasad Singh having been promoted on officiating basis with a clear stipulation that he will not get seniority in the rank of Inspector till finally selected could not have preferred a claim regarding his seniority on the basis of promotion of Ramjas Singh, though initially junior to him yet substantively promoted in accordance with Rule 660-C on 8.7.1972 whereas Brij Bihari Prasad Singh was promoted after selection under Rule 649 in 1978. The High Court totally ignored the basic principles governing the service rules and the mandate of law. There was, therefore, no justification of issuing the directions to direct the promotion of Brij Bihar Prasad Singh while deciding the writ petition No. 697 of 1995 and dismissing the LPA No. 1018/95 vide the judgment impugned in this appeal filed against Brij Bihari Prasad Singh.

It appears that the High Court totally lost sight of the fact that in his petitions filed from time to time Brij Bihari Prasad Singh had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither any reason was assigned by the writ petitioner nor the Court felt it necessary to deal with this aspect of the matter. Ignoring such a basic principle of law has resulted in the supersession of 168 Inspectors and 407 Dy. SPs."

Applying the above said principles to the facts of the present case, I am of the considered view that presence of all the persons who are likely to be adversely affected, in the event of the plaintiff succeeding, before the court is essential. In other words, all such persons mentioned in the seniority list of 1981 are necessary and proper parties to the present suit. De hors the above findings, the suit of the plaintiffs would be liable to be dismissed for non-joinder of necessary par-, ties and consequently respondents herein would not be entitled to the relief claimed. The decree of the courts below would be liable to be set aside.

For the aforesaid reasons, these appeals are accepted, the impugned judgments of the learned Courts below dated 31.8.1988 and 21.8.1990 are set aside. The suit of the respondents herein shall stand dismissed. However, without any order as to costs.

Appeals allowed.