Rakesh Miglani vs State of Haryana and Others

A.P. Chowdhri, J.—The question raised in this writ petition is whether the period of ad hoc service which is followed by regular appointment is to be counted for purposes of seniority?

Brief facts giving rise to this question are that the petitioner was appointed as Lecturer in Management, Government Institute of Management and Pharmacy, on September 17, 1985, vide appointment letter Annexure P-1. The appointment was purely on ad hoc basis for a period of six months or till the recommendees of Haryana Public Service Commission joined, whichever was earlier. The petitioner continued to serve respondent No.2 by virtue Of the extension given from time to time. His services were regularised with effect from January 1, 1991.

Further case of the petitioner is that respondent No. 3 was also appointed on adhoc basis on September 27, 1985 i.e. after about 10 days of petitioner''s appointment of ad hoc basis are he too was regularised in terms of the policy decision of the State Government. The petitioner claimed to be senior to respondent No. 3 on the ground that he had been continuously officiating for a longer period and the service rendered by him on ad hoc basis was required to be counted for determining his seniority.

In the written statement filed by the official respondents 1 and 2, it has been stated that the name of respondent No. 3 was recommended by the Haryana Public Service Commission and he was appointed on regular basis vide Government letter dated December 4,1987, Annexure R-3 filed with the written statement. It was further stated that as respondent No. 3 had been appointed on regular basis in December 1987, he ranked senior to the petitioner who was regularised with effect from January 1, 1991. The order promoting respondent No. 3 as Senior Lecturer was, thus, justified to be valid.

In the written statement filed on behalf of respondent No. 3, it was stated that the petitioner and respondent No. 3 were governed by the Haryana Technical Education Department Group-B Service Rules, 1986. Rule 11 relating to seniority lays down 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, seniority shall be determined separately for each cadre;

Provided further that in the case of member or members appointed by direct recruitment, the order of merit determined by the commission shall not be disturbed in fixing the seniority.

Provided further that in case of two or more members appointed on the same date, their seniority shall be determined as follows :-

xxx xxx xxx xxx xxx (Not relevant for present purposes)

The key words in this rule are "continuous service on any post in the service". The point of significance is that unless the appointment is an appointment in accordance with the Rules, it is not an appointment to a post in the service and, therefore, the officiation of the appointee is not to be considered as continuous officiation in the service, which alone entitles a person to seniority.

The contention of Mr. Rajesh Joshi, learned counsel for the petitioner, is that where ad hoc service is followed by regular service, the period of ad hoc service is to be counted for determining seniority. He placed reliance on Delhi Water Supply and Sewage Disposal Committee and Others Vs. R.K. Kashyap and Others, and Surinder Singh Sekhon v. State of Punjab 1993(1) SCT 412.

The contention of the learned counsel appearing for the respondents, on the other hand, is that the normal rule is that for purposes of seniority the period to be taken into consideration is after regular appointment. Reference has been made to a number of decisions of this Court as well as the apex Court.

After carefull consideration of the respective submissions, we are of the view that the petition is not entitled to count the period of ad hoc service from September 17, 1985, to December 31, 1990, for purposes of seniority and in the case before us respondent No. 3 ranks senior to the petitioner as he was regularly appointed on being selected by the Public Service Commission in December 1987.

In Sohan Lal v. State of Haryana and Ors. 1992(4) SLR 190, the question for consideration before a Division Bench of this Court was as follows :-

"Whether the service rendered by a person on ad hoc basis before his regular appointment to a cadre in a civil service counts for the purposes of seniority?"

The relevant service Rules in the aforesaid case of Sohan Lal were the Haryana Food and Supplies Department Sub-Offices (Group C) Service Rules, 1982, Rule 11 relating to seniority was reproduced by the learned Judges and the said rule is in pan materia with Rule 11 of the Haryana Technical Education Department Group B Service Rules, 1986, which is the concerned set of Rules governing the parties before us. The Bench referred to two decisions of the Supreme Court in Union of India v. S.K. Sharma 1992 (2) SLR 373 and Masood Akhtar Khan and Ors. v. State of Madhya Pradesh and Ors. 1990 (5) SLR 639 (S.C.) In Masood Akhtar Khan''s case, it was held by the apex Court that if the initial appointment is not made according to the rules, subsequent regularisation of his service does not entitle an employee to the benefit of intervening service for seniority. Seniority had to be reckoned from the date of regular appointment and is not to be counted from the date of any stop-gap appointment. The Bench, therefore, held that the service rendered by a person on ad hoc basis before this regular appointment to a cadre in civil service does not count for seniority. Incidentally, it may be pointed out that the Bench in Sohan Lal''s case utter alia referred to Delhi Water Supply and Sewerage Disposal Committee''s case 1988 (6) SLR 33, which was distinguished on the ground that the Supreme Court was not dealing with a case which is covered by the specific statutory rules, like the case in Sohan Lal governing the fixation of seniority. In a recent decision in S.K. Saha v. Prem Prakash Agarwal and Ors. JT 1993 (6) SC 441 it was laid down that where the initial appointment is only on ad hoc basis and not according to Rules or the same is made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering seniority. Their Lordships in S.K. Saha''s case inter alia relied on the earlier decision of the Court in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, . the aforesaid decision in Direct Recruit''s case was rendered by a Constitution Bench of the Supreme Court and it was laid down 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. The same view was reiterated by the apex Court in the State of W.B. and Others Vs. Aghore Nath Dey and Others, .

With regard to the authority relied on by the learned counsel for the petitioner, we may point out that Delhi Water Supply and Sewerage Disposal Committee''s case (supra) related to case of three Assistant Engineers who were promoted to the post of Executive Engineer. It was found that necessary Rules/Regulations governing the service including question of seniority had not been framed and the result was that for years persons'' had to continue on ad hoc basis. This included even cases where the appointment was not on ad hoc basis, properly so called. It was specifically pointed out that the period of continuous ad hoc service could not be treated as stop-gap arrangement in the peculiar facts of that case (see portion of the High Court judgment extracted in the judgment of the Supreme, Court in paragraph 8 at page 280 of the AIR report). After reviewing the case law, their Lordships concluded the discussion in paragraph 26 of the following words :-

"... There is, however, one other important and fundamental principle which should not be forgotten in any case. The principle of counting service in favour of one should not be violative of equality of opportunity enshrined in Articles 14 and 16 of the Constitution. ... ... ...

The length of service in ad hoc appointment or stop-gap arrangement made in the exigencies of service without considering the claims of all the eligible and suitable persons in the cadre ought not be reckoned for the purpose of determining the seniority in the promotional cadre ...

But if the claims of all eligible candidates were considered at the time of ad hoc appointments and such appointments continued uninterruptedly till the regularisation of services by the ''Departmental Promotion Committee or the Public Service Commission there is no reason to exclude such service for determining the seniority. Of course, if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy. In the absence of any rule or order the length of service should be the basis to determine the seniority."

A careful reading of the above conclusion leaves no room for doubt that the general rule is that ad hoc service followed by regularisation does not entitle an employee to count the period of ad hoc service for purposes of seniority. The exception is that where the initial appointment on ad hoc basis is itself made in accordance with the relevant rules after considering the claims of all eligible candidates and such appointment continued uninterruptedly till the regularisation of the service by the Departmental Promotion Committee or the Public Service Commission, as the case may be, such period of ad hoc service could be counted for determining seniority.

The other authority relied on by learned counsel for the petitioner, namely, Surinder Singh Sekhon 1993 (1) SCT 412 does not at all support the petitioner. In fact, it has been clearly held that seniority is to be counted from the date of regular appointment and not from the date when the employee was initially appointed on ad hoc basis even though he continued uninterruptedly thereafter. In the context of the respondents in that case it was held by the learned Single Judge that the respondents were promoted on temporary basis pending approval by the Commission, which was subsequently received and it was, therefore, held that such promotion would relate back to the date of their initial promotion.,This observation does not advance the case of the petitioner, because it is not his case that he was appointed subject to approval of the Public Service Commission, which was received later on. Admittedly the case pleaded by him is that he was appointed on ad hoc basis and his services were regularised in accordance with the policy decision of the State Government with effect from January 1, 1991. It was also not disputed by the petitioner that even though, respondent No. 3 had also been initially appointed on ad hoc basis, he appeared before the public Service Commission, was selected and given regular appointment in December 1987 i.e. prior to the regularisation of the petitioner.

For the foregoing reasons, we find no merit in this writ petition. Accordingly, the same is dismissed.