State of Punjab vs Tarlok Singh

K.C. Gupta, J.—This is regular second appeal by the defendants directed againsl the judgment and decree dated 8.9.1980 passed by the then Additional District Judge, Patiala, whereby their appeal was dismissed.

Briefly staled, the facts are that the respondent (plaintiff) was appointed as Dresser with effect from 30.7.1960 after having been recommended by the Employment Exchange. After sometime, he was pro-moted as Trachoma Supervisor (now designated as Trachoma Basic Health Worker) on 21.5.1962 by the Director, Health Services, Punjab, vide order dated 16.5.1962. However, later on the post was abolished and he was reverted. After sometime, the post of Clerk fell vacant in the office of the Chief Medical Officer, Patiala. He applied for the same. He was considered for the said post alongwith the recommendees of the Employment Exchange, with the result, that he was selected and appointed as Clerk on 17.6.1967. His appointment was duly approved by the Director, Health Services, Punjab. The Director, Health Services, also accorded approval for his continuation as Clerk after a period of six months till further orders and report about his work and conduct was also called. He had been continuing since then. The Director, Health and Family Welfare, Punjab, vide his order dated 10.10.1978 1.e. after a period of 11 years, ordered his reversion from the post of Clerk to that of Trachoma Basic Health Worker. Aggrieved by the said order of the Director, Health and Family Welfare, the respondent filed a suit seeking declaration to the effect that the said order was illegal, ultra-vires, unconstitutional, null and void, mala fide and against the principle of natural justice, on the grounds that the impugned order was discriminatory in character as persons junior to him were still serving the department as Clerks and further the order was hit by Article 311 of the Constitution of India and also that he was not heard before reverting him and that the order was contrary to the terms of his appointment as well as Punjab Civil Services (Punishment and Appeal) Rules, 1970. He also slated that he was allowed to cross the efficiency bar on 8.2.1973 with effect from 6.2.1969 and further his work and conduct had always been satisfactory. Further prayed that he be deemed to be in continuous service as Clerk and further he claimed the relief of permanent injunction for restraining the appellants from giving effect to the impugned order.

The appellants contested the suit and filed the written statement. They controverted the allegations of the respondent and stated that the respondent was appointed as Clerk on ad hoc basis for six months and he was not recommended either by Employment Exchange or by Subordinate Service Selection Board; that his appointment was subject to the condition that he would be replaced by arecommendce of the Departmental Selection Committee, unless his own candidature was approved by it. They next stated that the impugned order reverting him was passed as he did not fulfil the conditions of regularisation of his service as Clerk, according to the instructions issued by the Chief Secretary, Punjab, vide letter dated 3.5.1977 and as such asserted that the impugned order was legal, valid and enforceable against the respondent and was in accordance with the conditions of his appointment. They further stated that notice u/s 80 C.P.C. was not served before filing the suit and as such the suit was not maintainable and also the suit was not properly valued for the purpose of Court fee and jurisdiction. Accordingly, the following issues were struck on January 2, 1979 :-

"1. Whether the appointment of the plaintiff was on regular basis, if so, its effect ? OPP

Whether the order dated 9.10.1973 (wrongly recorded in lieu of the correct date October 10, 1978) is illegal as alleged in the plaint ? OPP

Relief."

The parties produced their evidence. The trial Court, under Issues No. 1 and 2, vide judgment dated 24.12.1979, held that the impugned order was illegal and was in violation of the Constitution of India and Punjab Government''s instructions issued from time to time and, therefore, was liable to be set-aside. Consequently, the decree for declaration was passed and the order dated 10.10.1978 passed by there Director, Health and Family Welfare, Punjab, Chandigarh, reverting him from the post of Clerk to his original Class IV post was set-aside and it was held that he would continue in service as Clerk and further by way of permanent injunction, the appellants were restrained from giving effect to the impugned order.

Aggrieved by the said judgment and decree, the defendants filed appeal, which was also dismissed by the then Additional District Judge, Patiala, vide judgment dated 23.1.1980.

Still aggrieved by the said judgment and decree, the defendants have filed the present regular second appeal.

It may be mentioned here that regular second appeal was admilted vide order dated 23.2.1981.

I have heard Sh. R.P.S. Athwal, Deputy Advocate General, Punjab," for the appellants and Sh. Deepinder Singh, Advocate, proxy for Sh. P.S. Patwalia, Advocate, for the respondent (plaintiff) and have carefully gone through the file.

The learned State counsel contended that the respondent was appointed as Clerk on ad hoc and purely temporary basis on 17.6.1967 on the condition that he would be replaced by recommendee of the Commission and his employment was only for a period of six months. He further contended that the respondent was not appointed as a Clerk through Employment Exchange and as such his services could not be regularised in accordance with the Punjab Government''s instructions dated 29.1.1973 and 3.5.1977 and since he was not selected for regular appointment, so he was rightly reverted and he had no vested right to claim slection as Clerk on regular basis. It is not disputed that initially i.e. on 17.6.1967, the respondent (plaintiff) was appointed as Clerk on ad hoc basis and subsequently two approvals by his competent authority for his continuance as such were granted on the same basis i.e. ad hoc basis. He continued as such for more than 11 years when he was reverted vide order dated 10.10.1978 (Ex.PB). Certainly, a person cannot continue on ad hoc basis for a long period of more than 11 years. The Punjab Government had issued instructions/guidelines dated 3.5.1977 for regularising the services of ad hoc appointee which arc''as under :-

"1. The ad hoc appointee must have completed a minimum of one year''s service on 31st March, 1977.

The ad hoc appointee fulfils the academic qualifications including experience, if any, prescribed for the job/post, including the condition of age at the time of their first appointment as such.

The name of the ad hoc appointee was recommended for such appointment by the Employment Exchange or his application was received in response to the advertisement made for filling up such post.

Work and conduct of the ad hoc appointee has been satisfactory.

A regular post/vacancy is available for regularisation."

It is not the case of the appellants that the ad hoc appointee had not completed minimum service of one year on 31.3.1977 or that he did not fulfill the academic qualifications or that his work and conduct was not satisfactory, but their only grouse is that the respondent was not recommended for appointment as Clerk by the Employment Exchange. It is the admitted case of the parties that the respondent had applied for the post of Clerk and his case alongwith the other re-commendees of the Employment Exchange was considered and he was found suitable and was selected/appointed as Clerk. The Punjab Government, vide letter dated 5.1.1979 (Ex.PH), had clarified with respect of condition No. 3 contained in its circular letter dated 3.5.1977 asunder :-

"As already stated, another condition, prescribed in the present circular is to the effect that the concerned ad hoc employee to be regularised should have been recommended for employment by the Employment Exchange or his application should have been received in response to advertisement made for filling the post. This condition is relevant in respect of an ad hoc employee who has been directly recruited from the open market and in whose case a resort to such a procedure was feasible and necessary. However, there are a number of ad hoc employees who have been appointed by methods other than direct recruitment. For instance, there are cases where initially certain persons were work charged employees and were later on appointed, on ad hoc basis, to posts in regular establishment. In such cases, the above condition regarding recruitment through employment exchange will not deemed to be applicable. Again there are a number of ad hoc present posts by promotion from the lower post. Their services may also be regularised on the fulfilment of the condition that their appointment to the lower posts was made in accordance with the prescribed procedure, namely, by inviting names through employment exchanges or by advertising the post. It is necessary to clarify that there is no intention whatsoever to relax the educational qualifications or the experience that stands prescribed for the post."

Therefore, according to this clarification, Condition No. 3 i.e. regarding recruitment Ihrough Employment Exchange will not be applicable where initially certain persons were appointed as work-charged employees and laler on appointed on ad hoc basis to the posts in regular establishment. There is no dispute about it that his initial appointment was made in accordance with law. Since the respondent was already working as Class IV employee, so he could not have asked the Employment Exchange to recommend his name for the Class III post. Therefore, the appellants cannot be al- lowed to contend that the respondent was not regularised as his name was not recommended by the Employment Exchange and as such he was reverted. Hence, the impugned order dated 10.10.1978, reverting him from the post of Clerk to his original post, cannot be sustained as it is in violation of Punjab Government''s instructions. The proxy counsel for the respondent also contended that juniors to the respondent, namely, Pushpa Rani, Jaspal Kaur and Pritam Singh, had been regularised and the respondent had been discriminated. Therefore, the respondent cannot be made to suffer adversely as his juniors standing on the same footing had been promoted.

Consequently, there is no force in the regular second appeal and the same is dismissed with costs.

Appeal dismissed.