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Judgment
NAMIT KUMAR, J. (Oral)
The present petition has been filed by the petitioner under Articles 226/227 of the Constitution of India, seeking a writ of mandamus for directing the respondents to grant seniority to the petitioner from the date of her initial appointment i.e. 21.07.1989, and to release all consequential benefits flowing therefrom, along with interest @ 18% per annum.
The case set-up by the petitioner is that she submitted an application dated 01.06.1989 (Annexure P-8)8), to the Chairman, Punjab State Electricity Board, Patiala [now ‘Punjab State Power Corporation Ltd.’ (PSPCL)] seeking appointment as Clerk. In the said application, the petitioner stated that she belonged to a poor family; had cleared matriculation in the 1st Division and had appeared in 10+2 examination. She further stated that she has come to know that in Division Rayya Circle Tarn Taran, there are two vacant posts and accordingly requested that she be appointed against one of the said vacancies. Pursuant thereto, the petitioner was appointed as Lower Division Clerk (on ad hoc basis) for a period of 3 months, vide order dated 21.07.1989, issued by the Superintending Engineer, Circle Tarn Taran, Amritsar and was posted to work at Sub Division Beas, vide order dated 28.07.1989 (Annexure P-1). Subsequently, ex post facto sanction to the petitioner’s ad hoc appointment for a period of 3 months as Lower Division Clerk was accorded by the Punjab State Electricity Board, vide letter dated 08.01.1990 (Annexure P-2) and she was permitted to further continue in service.
It is further the case of the petitioner that w.e.f. 20.03.1998, passing of English & Punjabi Type Test was made compulsory for the post of LDC. However, vide instructions dated 13.07.2001 (Annexure P-3), it was directed that the condition of having passed type test was waived off in the case of direct recruited LDCs and LDCs appointed on compassionate grounds prior to 25.08.1989 as well as the LDCs, who have attained the age of 50 years and above. Thereafter, vide instructions dated 10.11.2003 (Annexure P-4), the benefit of exemption was further extended to the widows appointed as LDCs on compassionate grounds irrespective of their age/date of appointment. The petitioner qualified the English & Punjabi Type Test on 15.01.2007, whereupon her services were regularized with effect from the said date. Thereafter, the petitioner submitted representation dated Nil (Annexure P-4A) claiming regularization with effect from the date of her initial appointment i.e. 21.07.1989, followed by another representation dated Nil (Annexure P-6) and legal notice dated 01.02.2018 (Annexure P-7). As no decision was taken thereon, the petitioner has approached this Court by way of instant petition claiming seniority from the date of her initial appointment i.e. 21.07.1989, with all consequential benefits.
Written statement on behalf of the respondents through Er. Surinder Paul Sondhi, Additional Superintending Engineer, Rayya Division Beas, Circle Tarn Taran, PSPCL, District Amritsar has been filed, wherein it has been stated as under:
“2.That at the outset it is submitted that the present petition is false, frivolous, and vexatious and as such is liable to be dismissed. It is submitted with great responsibility that the petitioner has mislead this Hon’ble Court and come to Court with unclean hands. This assertion by the respondent-corporation is being made in view of the fact that the petitioner has appended a wrongly translated appointment/transfer letter. Therefore, on this solitary ground alone the writ petition is liable to be dismissed. To buttress the stand of the respondent-corporation reference can be drawn to a judgment passed by the Hon’ble Supreme Court in ‘S.P. Chengalvaraya Naidu v. Jagannath’, (1994) 1 SCC 1, wherein J. Kuldip Singh (as he then was) speaking for the Court held as under:
“5.xxxxx The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
3.That de-hors the preliminary objection taken herein above, even on facts the present writ petition is liable to be fail. It is submitted that before dilating the grounds that would render the present petition devoid of any merit, a brief factual background of the lis is necessary to be put forth before this Hon’ble Court.
4.That it is submitted that the petitioner was appointed with the respondent-corporation on the post of LDC on ad-hoc basis vide order dated 21.07.1989. She joined the services of the respondent-corporation on 28.07.1989. It is submitted that the case as put up by the petitioner is that she was appointed on ad-hoc basis but by giving a compassionate appointment. To support this contention the petitioner relies upon order bearing no.278 dated 28.07.1989 (P--1, Page – 11). It is most respectfully submitted that the translation appended by the petitioner is erroneous as the vernacular appended at Page-30, clearly shows ਤਦ-ਅਰਥ which translates to ad-hoc and not on compassionate basis as being depicted in the translation at Annexure P-1. A correct translated copy of Annexure P-1 is being appended herewith as ANNEXURE R-1. It would also be pertinent to bring to the notice of this Hon’ble Court order dated 08.01.1990 (P-2, Page – 12), whereby the ex-post facto sanction was granted to the ad-hoc appointment of the petitioner and not ad-hoc compassionate appointment as is being portrayed before this Hon’ble Court.
5.That given the petitioner was not appointed on compassionate grounds, therefore, the reliance on memo dated 13.07.2001, is erroneous and as a consequence it was mandatory for the petitioner to pass the type test in English and Punjabi. It is an admitted fact in the pleadings itself that the petitioner passed the type test in English and Punjabi as was required on 15.01.2007 and therefore, her services were regularised with effect from 15.01.2007.
6.That thus, in view of the facts and circumstances mentioned hereinabove it is apparent that the petitioner was not entitled to relaxation from passing the type test in English and Punjabi and hence her regularisation with effect from 15.01.2007 i.e. the date when she passed the said test is in accordance with the Rules and Regulations of the respondent-corporation.
7.That another preliminary objection that is necessary to be taken before this Hon’ble Court is that even though the claim of the petitioner is erroneous, yet it suffers from delay and laches. The services of the petitioner were regularised with effect from 15.01.2007 and she for the first time raised her claim vide an undated communication (P-6, Page – 22) and thereafter vide Legal Notice dated 01.02.2018 (P-7, Page – 24). Thus, even on delay and laches the claim of the petitioner is liable to be rejected.
8.That thus, it is most respectfully submitted that it is apparent that there is no merit in the present lis and as such is liable to be dismissed.”
In nutshell, the stand taken by the respondents is that the petitioner has made a mis-statement of fact to the effect that the appointment of the petitioner is a ‘compassionate appointment’, whereas the same is an ad hoc appointment for a period of 3 months, which was extended time to time and that her services were regularized on 15.01.2007, after she qualified the Punjabi & English Type Test. It has further been stated that there is gross delay in filing the present petition for claiming seniority.
Learned counsel for the petitioner submits that since the appointment of the petitioner was against a regular sanctioned post on ‘compassionate’ grounds and as per instructions dated 13.07.2001 (Annexure P-3) and 10.11.2003 (Annexure P-4), the compassionate appointees were granted exemption from passing the English & Punjabi Type Test, therefore, the respondents ought to have regularized the services of the petitioner from her initial date of appointment and consequently, she is entitled for fixation of seniority as LDC with effect from the said date i.e. 21.07.1989, with all consequential benefits.
Per contra, learned counsel, representing the respondents, has submitted that the petitioner was never appointed on compassionate grounds, but was engaged as LDC purely on ad hoc basis, vide appointment letter dated 21.07.1989, initially for a period of 3 months. Therefore, the petitioner was required to qualify the prescribed Type Test, as she was not entitled for exemption from passing the English & Punjabi Type Test. It is further submitted that having cleared the prescribed Type Test on 15.01.2007, her services were rightly regularized with effect from the said date i.e. 15.01.2007. It is, therefore, submitted that the petitioner cannot claim regularization and seniority with effect from the date of her initial ad hoc appointment.
I have heard learned counsel for the parties and have perused the record.
The facts are not in dispute that the petitioner submitted an application dated 01.06.1989 (Annexure P-8) addressed to the worthy Chairman of the then Punjab State Electricity Board, Patiala, seeking appointment as Clerk. The said application reads as under:
“To
Worthy Chairman,
Punjab State Electricity Board, Patiala
Subject: For appointment as clerk.
Respected Sir,
It is requested that I belong to a poor family. Our family condition is very pitiful. I have cleared matriculation in 1st division and I have appeared in 10+2 examination. From reliable sources it has come to knowledge that in Division Rayya Circle Tarn Taran, there are two vacant posts. So it is requested that I be appointed against one vacancy. I shall be highly grateful.
Yours faithfully
Sukhraj Kaur d/o Dhanna Singh
Village Bahadurpur,
P.O. Nikkad, Tehsil Tarn Taran
District-Amritsar, Punjab
She may be helped
Sd/-
SS Tarn Taran
Diary No. 3427
Dated 01.06.1989”
A perusal of the said application reveals that the petitioner pleaded financial hardship on account of her poor family background, highlighted her educational qualifications and requested appointment against one of the vacant posts available in Rayya Circle, Tarn Taran. The application nowhere discloses that it was submitted under any policy or scheme governing compassionate appointments or that it was founded upon the death of a Board employee in harness so as to attract the compassionate appointment policy. However, the respondents considering the averments made in the application, appointed the petitioner on ad hoc basis initially for a period of 3 months, vide appointment letter dated 21.07.1989. The said ad hoc appointment has been extended from time to time. Thereafter, the services of the petitioner have been regularized w.e.f. 15.01.2007 after she had cleared the Type Test and has been assigned seniority with effect from the said date i.e. 15.01.2007.
The contention raised on behalf of the petitioner that her initial appointment ought to be treated as ‘compassionate appointment’ is liable to be rejected, as the said appointment was an ad hoc appointment for a period of 3 months and was not made in terms of the instructions/policy issued by the respondents relating to compassionate appointments. Compassionate appointment is not merely an appointment made out of sympathy or humanitarian considerations. It is a distinct source of recruitment governed by a specific policy framed to provide immediate financial assistance to the family of a deceased employee dying in harness. Such appointments are made only upon fulfillment of the eligibility conditions prescribed under the relevant compassionate appointment scheme. The petitioner has neither placed on record any order showing that her appointment was made under the compassionate appointment policy nor has she established fulfillment of the conditions governing such appointments. On the contrary, the order dated 28.07.1989 (Annexure P-1) clearly describes her appointment as purely ad hoc for a period of three months. Merely because the authorities, considering the financial condition of the petitioner, extended the benefit of an ad hoc appointment, such appointment does not acquire the character of a compassionate appointment. Compassion may have motivated the authorities to consider her application seeking appointment, however, the nature of appointment continue to be governed by the appointment order itself and does not confer any right for exemption from passing the type test, which was admissible to only those persons, who were appointed on compassionate grounds.
The argument advanced on behalf of the petitioner that she is entitled to parity with her junior, namely, Amrit Kaur, who was appointed on 12.01.1990, does not advance her case. Nothing has been brought on record to establish that the petitioner's appointment was made against a regular sanctioned post on compassionate grounds. In fact, the office order dated 28.07.1989 (Annexure P-1) does not disclose any such fact. Likewise, no material has been placed before this Court to demonstrate that the appointment of the said Amrit Kaur was made under similar circumstances, such as, financial hardship. In the absence of any material establishing that both appointments were made under identical facts and circumstances, no claim of parity can be sustained. It is also pertinent to note that vide order dated 28.07.1989 (Annexure P-1), whereby the petitioner was posted to Sub Division, Beas, a specific remark/comment was recorded to the effect that "the applicant be adjusted in the place of Sh. Harjinder Singh, who remained absent from duty." The said comments clearly indicate that the petitioner's appointment was merely intended as a stop-gap arrangement to meet an emergent administrative exigency arising out of the absence of an incumbent. It was not shown to be an appointment against a regular sanctioned post on compassionate grounds. Even otherwise, it is also a settled principle that an irregularity or illegality committed in a particular case cannot, by itself, furnish a basis for claiming a similar benefit by invoking the principle of equality. An illegal or irregular regularization made in favour of another employee cannot be cited as a precedent or as a source of enforceable right for seeking a similar relief or benefit in public service. Reference in this regard may be made to the judgments of the Hon'ble Supreme Court in State of Haryana & others Vs. Ram Kumar Mann, (1997) 3 SCT 135; I.C.A.R. & another Vs. T.K.Suryanarayan & others, (1997) 4 SCT 156 and State of Bihar Vs. Upendra Narayan Singh & others, (2011) 1 SCT 208. In Ram Kumar Mann’s case (supra), it has been observed as under:
“The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly Circumstanced person claim equality under Section 14 for Reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right'."
Thus, regularization of Amrit Kaur, who is junior to the petitioner, cannot be taken as a precedent or ground to issue a direction in writ proceedings to regularize the petitioner, who was found otherwise not eligible for such relief.
Further, the petitioner seeks fixation of seniority from 21.07.1989 by way of the present writ petition instituted on 18.05.2018 i.e. about 29 years after her initial appointment and more than 11 years after regularization of her services on 15.01.2007. Such an extraordinary and unexplained delay is fatal to the relief claimed. It is a settled principle that disputes relating to seniority ought to be raised within a reasonable time, as revision of settled seniority after delay would seriously prejudice the rights of numerous employees who have acquired vested rights on the basis of the existing seniority position. None of the employees likely to be affected by any alteration of seniority has been impleaded as a party respondent. In their absence, no effective adjudication regarding revision of seniority can be undertaken.
The claim of the petitioner is also untenable on merits. It is well settled that seniority flows from substantive appointment to the cadre and not from the date of an ad hoc or temporary appointment. An employee appointed on ad hoc basis does not become a member of the service merely by continuation in such capacity. It is well settled proposition of law that the seniority cannot be claimed from the initial date of ad hoc appointment and the same is only admissible from the date an ad hoc employee is made regular, when he/she becomes member of the cadre. Ad hoc service per se is not admissible for claiming seniority, as has been held in Malook Singh and others Versus State of Punjab and others, 2022(17) SCC 765, wherein Hon’ble the Supreme Court has observed that the ad hoc service is not countable towards seniority. The judgment in Malook Singh’s case has been followed by this Court in Satnam Singh Beldar and others Versus State of Punjab and others, 2024(5) SLR 238; State of Punjab and others Versus Ajit Kaur, 2024 NCPHHC 44509.
In view of the foregoing discussion, this Court is of the considered opinion that the petitioner has failed to establish that her initial appointment was a compassionate appointment. The regularization of her services with effect from 15.01.2007 after qualifying the type test cannot be faulted. The prayer for grant of seniority from the date of initial ad hoc appointment is contrary to the settled principles governing service jurisprudence and is further barred by gross delay and laches.
Accordingly, finding no merit in the present petition, the same is hereby dismissed.