Ms. Paramjit Kaur v. The State of Punjab and Another

Registry to list both the writ petitions as per roster, for disposal. Civil Writ Petition No. 4269 of 2001 In this writ petition, a prayer has been made that the order dated 5.10.2000 (Annexure P12) whereby the claim of the petitioner, for counting of ad hoc service towards seniority, has been rejected, be set aside and the service, rendered by the petitioner w.e.f. 9.4.1985, be counted towards seniority. It has been further prayed that the entire service of the petitioner, rendered as a Clerk w.e.f. 9.4.1985, in the office of respondent No.2-Director, Public Instructions (Schools), Punjab, be counted and she be placed in the seniority list of the Clerks at serial No. 45A. Thereafter, the consequential benefits be also extended to the petitioner. It is a case of the petitioner that she was appointed as a Clerk on 9.4.1985 in the office of the Director, Public Instructions (Schools), Punjab, in pursuance of the call extended by the Employment Exchange. She was selected by the duly constituted Selection Committee and the appointment letter dated 2.9.1985 (Annexure P1) reveals that the initial appointment of the petitioner as a Clerk was on ad hoc basis for a period of 89 days only. It is further averred that in December 1985, another Departmental Selection Committee was constituted to make regular selection of the Clerks. The claim of the Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 3 petitioner was again considered for regular appointment and she was re-appointed as such w.e.f. 1.1.1986. It is pleaded that there was no break in her service and she has been continuously working in the office of respondent No.2-Director, Public Instructions (Schools), Punjab, since

9.4.1985. Respondent No.2-Director, Public Instructions (Schools), Punjab, had sent a communication dated 18.12.1986 (Annexure P2) to the Secretary to the Punjab Government, Education Department, Punjab. It was stated therein that the Departmental Selection Committee, so constituted, had recommended that 15 employees, out of the ad hoc employees, had been issued regular appointment letters. Out of 15 employees, eight have been selected for Subordinate Offices instead of Head office, on the basis of merit list. Six employees filed the writ petition in the High Court and their termination was stayed. Those six employees, who were selected by the Committee and obtained the stay order, their names were as follows:- Sr. No. Name of employee First date of extension in service

6. Jagmeet Kaur

31.12.86 Manjeet Batla Vijay Lakshmi Promila Devi Paramjit Kaur-2 Ravinder Kaur

3.3.87

10.10.86

21.12.86

10.10.86

10.10.86 Date from which the extension has been given again

1.1.87

4.3.87

11.12.86

1.1.87

11.10.86 On 14.7.1989, the Education Department, Punjab had issued an order (Annexure P3), wherein it was stated that the above said six clerks, who were appointed on ad hoc basis in the Subordinate Offices, Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 4 had been adjusted to continue provisionally w.e.f. 19.7.1989 in the grade of Clerks i.e. ` 950-1800 till the final decision of the Civil Writ Petition No. 6128 of 1986. Learned Single Judge of this Court, vide order dated

11.4.1997 (Annexure P4), decided the said writ petition. It was urged in that writ petition that the services of the petitioners be regularized in view of the notification issued by the Punjab Government in the year

1985. Since the department took a stand that the service of the petitioners had been regularized, the writ petition was dismissed as infructuous. The operative portion of the order (Annexure P4) reads as under:- “...As for the claim for regularization, it is admitted position that the service of the petitioners have since been regularized. Mr. Mukand Gupta, learned counsel for the petitioners, states that the petitioners having been regularized that part of the claim has been satisfied. The writ petition has been rendered infructuous. In so far as the challenge to the instructions dated April 15, 1986, is concerned. Mr. Gupta submits that in view of the written statement this issue need not be decided at this stage and the petitioners shall approach the Court if they have any cause of action. Mr. Gupta, however, submits that the petitioners are working in the Head Office since the Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 5 year 1989. The order of their allocation to the Head Office be confirmed. This prayer is totally beyond the claim made in the petition. It cannot be entertained at this stage. In view of the above, the writ petition is disposed of as having been rendered infructuous. In the circumstances, there will be no order as to costs...” It is a case of the petitioner that she was regularized w.e.f.

19.7.1989. The department had circulated the provisional seniority list on 6.5.1998. The petitioner had submitted representation dated

9.11.1999 (Annexure P6) for correction in the seniority list and canvassed therein that instead of considering 19.7.1989 when her services were regularized as a date of her appointment, the seniority be granted to her w.e.f. 1.1.1985 when she had joined the office of respondent No.2 as an ad hoc Clerk. The relevant portion of the representation reads as under:- “...Therefore, in accordance with the judgments given by Hon'ble Supreme Court and Punjab and Haryana High Court, in such like cases, seniority has to be given from the date of initial joining. Therefore, my seniority may be fixed by taking my date of joining as 1.1.1985 instead of 19.7.1989...” Thereafter, the petitioner issued a legal notice dated

26.11.1999 (Annexure P7). On 2.12.1997, respondent No.2-Director, Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 6 Public Instructions (Schools), Punjab, passed the order (Annexure P8) and fixed the seniority of Promila Devi and the petitioner. The relevant portion of the order (Annexure P8) reads as under:- Sr. No. Seniority No. Name Date of QualificationDate of Birth Govt. Service Remarks Date of DPI office

1. XXX XXX XXX XXX XXX XXX XXX

2. 298(B) Promila Paramjit Devi

23.4.60 B.A.

1.1.85 19.7.89 Through Committee

3. 294(C) Paramjit

12.3.61 B.A.

2.4.85 19.7.89 “ Kaur XXX XXX 4 to 6 XXX XXX XXX XXX XXX Parmala Devi and the petitioner filed writ petition viz. Civil Writ Petition No. 6860 of 2000 and the Division Bench of this Court, vide order dated 27.7.2000, had disposed of the same by directing respondent No.2 to decide legal notice dated 26.11.1999 (Annexure P7). The legal notice was decided by respondent No.2 vide order dated

5.10.2000 (Annexure P12) and the claim of Parmala Devi was rejected by observing as under:- “...As far as regularization of the ad hoc/temporary employees in pursuance of the Chief Secretary to Punjab Govt. Instructions No. 12/1/82-GE-10926, dated 8.8.85 is concerned, it is submitted that the services of only those employees were required to be considered for regularization as on 1.4.1985 who had completed one year service on that date. Smt. Parmala Devi, Clerk, was appointed as ad Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 7 hoc/temporary Clerk on 1.1.85 and as such she did not complete one year service as on 1.4.85 and thus her case was not considered for regularization w.e.f. 1.4.1985 because her date of ad hoc appointment was 1.1.85...” No written statement has been filed in the present writ petition. However, a reply was filed to the Review Application No. 338 of 2003, wherein the respondents have taken the following stand: “...4. That the petitioner and 5 others were working in Head Office purely on temporary bass i.e. 89 days basis. They were never selected for the Head Office through the departmental Committee for regular basis. But in 1986 departmental selection committee selected 15 persons for Head Office and 6 persons for Sub Office of the department. The petitioner and 5 others were selected for the Sub Office and suspecting termination from the Head Office and to be posted in the Sub Office of the department, they filed CWP No.6128 of 86 in this Hon'ble Court. Hence, their services were regularized w.e.f. 19.7.1989. Prior to this date (19.7.89) they were working on 89 days basis. Hence, their seniority cannot be counted from the date of ad hoc appointment i.e. 9.4.1985 because hey were appointed purely on ad hoc basis. It is Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 8 further submitted that their respective seniority No. have also been allotted to them w.e.f. 19.7.89 as per Annexure P8 (CWP No.4269 of 2001)...” Civil Writ Petition No. 4272 of 2001 The claim of the petitioner, to the instant writ petition, is identical to the case of Paramjit Kaur and the facts pleaded therein are almost identical and similar. It is also the prayer of the petitioner that she had initially joined the Education Department, Punjab, on 1.1.1985 and rendered her services as an ad hoc employee till 19.7.1989, thereafter, her services were regularized along with Paramjit Kaur and ad hoc service be counted towards her seniority. Having noticed the facts, arguments advanced in both the writ petitions, i proceed to deal with them. It is not disputed that both the petitioners were appointed as ad hoc Clerks on 9.4.1985 and 1.1.1985, respectively and their services were regularized on the basis of the instructions issued by the Punjab Government. For regularization, one of the instructions was issued by the Punjab State on 28.3.1985, wherein it was stated that those ad hoc/temporarily appointed employees, who have completed minimum of two years of services as on 1.4.1985, their services are to be regularized. However, these instructions have specifically stated as under:- “...(vii) Inter se seniority of ad hoc/temporary employees will be determined on the basis of service rendered on ad hoc/temporary Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 9 basis. The older member will be senior to a younger member appointed on the same date. All such ad hoc/temporarily appointed employees will be placed junior to those working on regular basis”. These instructions were amended lateron and new notification was issued on 26.6.1985, wherein it was stated that instead of two years, one year's service to the credit of the employee as on 1.4.1985 is to be considered for regularization. Learned Single Judge of this Court in Rajinder Singh v. State of Haryana 1997(2) Service Cases Today 356 has noticed the test which is to be applied for counting of the service of ad hoc employee. The relevant portion of the judgment reads as under:- “...4. It is the settled principle of law that ad hoc or temporary service rendered by an employee per se is not to be counted for the purposes of determination of his seniority in the concerned cadre/grade. The rare test for this purpose is whether the initial appointment was in accordance with rules, was upon a fair competition, was an appointment against regular posts and amongst others had rendered service in the regular grade upon availing the benefits available to a regular employee. The basic principle underlying this proposition of law is to avoid back door entries and Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 10 consequential prejudice to the candidates appointed on regular basis through proper channel and in accordance with rules. Thus the mischief sought to be pressed by this carnet principle of law is to prevent frustration of appointments on merit and affecting adversely seniority of such candidates selected in accordance with rules and law by the persons who are picked up by individual authorities without following rules and regulations and primarily with a sense of favouritism...” The Division Bench of this Court in Dr. Rajdeep Kaur v. State of Punjab and Others 2002(4) Service Cases Today 722, has observed, regarding the regularization of ad hoc employees, as under: “..7. It is undoubtedly true that the Constitution guarantees an equality of opportunity to all citizens. Every person, who fulfills the qualifications for a post, has a right to be considered. A person must get a chance to compete. Whatever be the nature of appointment - ad hoc, temporary or regular, the guarantee of equality of opportunity has to be ensured. The fairest method which an employer, especially the State Government, is expected to adopt is that the posts should be advertised. Every eligible candidate should be given a reasonable chance to apply. The claims of all eligible persons Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 11 should be impartially and objectively considered by the competent authority by adopting a fair, just and reasonable criteria. Thus, who are selected should be appointed in order of merit. This is undoubtedly the scope and mandate of Articles 14 and 16 of the Constitution.

8. In the recent past, a tendency has grown to fill-up the posts on ad hoc basis. Thereafter periodical instructions are issued for regularization of the services. All this usually results in a back-door entry of certain persons without their facing a fair and proper process of selection. After a lapse of time, the State Government issues instructions for the regularization of their services. Mr. Bains is right when he contends that such a process defeats the guarantee of equality of opportunity. Yet, the fact remains that instructions for regularization have been approved by the Courts in the country.

9. Regularization of an irregular appointment should normally not receive a stamp of approval from the Courts. Upholding the action of the State Government in issuing periodical instructions for regularization has only encouraged the State and its instrumentalities to resort to adhoc appointments and then regularize their service. Result is that Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 12 those who are not in a position to exercise and exert pressure or are unable to secure a back-door entry, do not get a chance to compete for appointment to a large number of posts under the State. Those who have the ability to exert pressure are able to secure jobs and then become regular members of the service. It is the time that the State Government seriously considers the desirability of desisting from regularizing the adhoc appointments. As a result of proper competition, only the meritorious shall be selected. They would perform the duties better. It would promote public interest...” A perusal of the record, as furnished by the department, reveals that for making the appointment to the post of 22 Clerks, the posts were taken out of the purview of the Subordinate Services Selection Board, Punjab. Thus, the Selection Committee, consisting of the Administrative Officer (Primary) and the Assistant Director (Secondary Education), was constituted. The names were also requisitioned from the Employment Exchange. In pursuance of that selection, the petitioners were appointed to the post of Clerks on ad hoc basis for 89 days. Subsequently, the petitioners were appointed as Clerks on regular basis in view of the notification, issued on 26.6.1985. The Government instructions, in the categoric terms, stated that those, who are regularized, cannot claim their seniority over those who have been appointed through the Subordinate Services Selection Board, Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 13 Punjab, after following a due procedure and issuance of the advertisement. On the facts of the present case, there is no doubt that those persons, whose initial appointments were made by following a regular procedure, in pursuance of the advertisement and the selection by the Subordinate Services Selection Board have to get precedence over the petitioners. Therefore, the petitiones even though were appointed by the Selection Committee by requisitioning their names from Employment Exchange on 89 days basis cannot be made senior as they had not competed with those who have been selected by the Subordinate Services Selection Board. The petitioners were regularized by way of Government instructions because of ad hoc service rendered. These instructions specifically stated that all such ad hoc/temporarily appointed employees are to be placed junior to those who are working on regular basis. Thus, the instructions, on the basis of which the petitioners were regularized, are to be read as a whole. It cannot be said that so far as the instructions, regularize the services of the petitioners, are valid, but so far as these deny seniority, these are invalid. Undisputedly, regularization of the petitioners flow from the concession made by the respondents in pursuance to the order dated 11.4.1997 (Annexure P4), passed in Civil Writ Petition No. 6128 of 1996. The relevant portion of the order (Annexure P4) reads as under:- “...The State Government has been issuing instructions periodically for regularization of the service of ad hoc employees. One such Civil Writ Petition No. 4269 of 2001 And Civil Writ Petition No. 4272 of 2001 14 communication was contained in letter dated March 03, 1969. Instructions were also issued in the year

1985. The petitioners claim that their claim for regularization was not considered inspite of the fact that they had completed the prescribed period viz. one year of ad hoc service...” Even though, lateron it is the stand of the respondents that the petitioners, on 1.4.1985, had not completed one year of service but since the order (Annexure P4) has attained finality, it is to be assumed that the services of the petitioners were regularized in view of the instructions issued in the year 1985. The instructions, issued in the year 1985, specify the procedure regarding the determination of the seniority. Therefore, the procedure for determination of the seniority given in the instructions, whereby the services of the petitioners were regularized is to be strictly followed. Since the instructions, issued in the year 1985, specifically state that those ad hoc employees, who were regularized, are to be treated as junior to those who were working on regular basis, hence, no benefit can be granted to the petitioners by counting their ad hoc service. Thus, both these writ petitions, being devoid of any merit, are dismissed, with no order as to costs. November 23rd, 2010 “DK” (Kanwaljit Singh Ahluwalia) Judge