Hari Singh & Ors. v. The State of Haryana & Anr.

Mr. Himanshu Raj, AAG, Haryana, for the respondent – State. KANWALJIT SINGH AHLUWALIA, J. (Oral) The seventeen petitioners, who were initially appointed as Clerks / Computer Operators / Stenos / Store Keepers, have approached this Court with a prayer that the temporary / ad hoc service rendered by them be counted towards seniority. Respondents be directed to issue a revised seniority list. Before this prayer is entertained, it will be necessary to narrate brief facts of the case. Between 1976 to 1983 petitioners were appointed on temporary basis for a period of three months on the posts, details of which have been given above. There was no break in service. However, from time to time, service of the petitioners was extended. Taking into consideration the fact that the petitioners have continued for a very long period, Government of Haryana issued various notifications for regularizing the services of such employees. One of CWP No.13276 of 1995 -2- the policy decision has been annexed to the present writ petition as Annexure P-2. A perusal of policy Annexure P-2 reveals that the Government decided that the services of those ad hoc employees, who had completed two years' service as on 31.12.1979 and were recruited through the Employment Exchange, were to be regularized w.e.f. 01.01.1980. This policy decision specifically stated that inter- se-seniority of those persons whose services are to be regularized shall be determined on the basis of date of joining. The notification issued by the Government on 01.01.1980 has been annexed to the written statement as Annexure R-1. Vide this notification, selection of the petitioner to the regular post was taken out of the purview of the Subordinate Services Selection Board, Haryana. It laid a condition that those employees who have completed two years' service on

31.12.1979 are to be regularized. Any break in service up to a period of one month was to be condoned. Subsequently, another notification (Annexure R-2) annexed to the written statement was issued on

19.01.1984. Another notification (Annexure R-3) was issued on

28.02.1991. As per notification (Annexure R-2) those employees were to be regularized who have completed two years of service on

15.09.1982 and vide Annexure R-3 service of those employees were to be regularized who have completed two years of service on

31.12.1990. Counsel for the petitioners has relied upon various judgments to say that the service rendered by the petitioners on temporary basis is to be counted towards seniority. The first very judgment cited by the counsel in The Direct Recruit Class-II CWP No.13276 of 1995 -3- Engineering Officers' Association and others versus State of Maharashtra and others, AIR 1990 Supreme Court 1607(1) oust the very claim of the petitioners. Para 13 of the judgment reads as under:- “13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan's case (AIR 1977 SC 205 1) 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 services 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 spelt out by Arts. 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal 'Which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive CWP No.13276 of 1995 -4- appointments, there is no reason to exclude the officiating service for purpose of seniority, Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold other wise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass v. State of U.P., (1981) 1 SCR 449 : (AIR 1981 SC 41), and Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap, (1989) Supp 1 SCC 194: (AIR 1989 SC 278), with which we are in agreement. In Narender Chadha v. Union of India, (1986) 1 SCR 211: (AIR 1986 SC 638) the officers were promoted although, without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.” Admittedly, petitioners were appointed on temporary basis. At the time of regularization, the post to which their appointment was made was taken out of the purview of the Subordinate Services Selection Board. Those temporary employees who were regularized have not competed in the open market. At the time of regularization, no equal opportunity was provided to the various persons who were eligible. Therefore, the appointment of the petitioners was de hors of CWP No.13276 of 1995 -5- the rules. Their regularization can be termed as a back door entry. There is clear violation of Articles 14 and 16 of the Constitution of India. Petitioners became regular employees because of the concession given by Government because of various notifications issued in the years 1984 and 1991. To make petitioners permanent regular employees, only criteria was that the incumbent completed two years of service. As a normal course, this could not be taken out of the purview of Subordinate Services Selection Board, Haryana. Therefore on the touchstone of Para 13 of The Direct Recruit Class- II Engineering Officers' Association's case (supra) petitioners cannot be equated with those who were selected on regular basis through Subordinate Services Selection Board, Haryana. The petitioners, if are given benefit of ad hoc service then they shall steel march over those whose appointment was made by Subordinate Services Selection Board, Haryana after following proper procedure. Thus those persons who were selected as result of issuance of advertisement, having competed with numerous persons, were declared successful, cannot be denied fruit of well earned selection because certain persons became employees of the State due to exception carved in their favour. Thus, there is no merit in the present petition, which is hereby dismissed with no order as to costs. 16-08-2010 (KANWALJIT SINGH AHLUWALIA) JUDGE