Kirori, 2 Mange Ram, 3 Dharambir, 4 Bijender Singh, 5 Ran v. Board of School Education, Education, Haryana, Bhiwani

CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH. Present:- Mr. Rajesh Arora, Advocate for the Plaintiff/Appellants. Mr. GPS Bal, Advocate for Defendant/Respondent no.1. Mr. R.N. Lohan, Advocate for private defendants/respondents no.2,4 to 24, 26 to 29, 31 to 39, 41, 43 to 53, 55 to 59, 61 to 65 and 67 to 96. JASWANT SINGH, J Civil Misc.No.9735-C of 2008 This is an application for condonation of 100 days days in refilling. Counsel for the parties have been heard. Regular Second Appeal No.3247 of 2008 # 6# For the reasons stated in the application delay is condoned. Application allowed. Civil Misc.No.9736-C of 2008 This is an application for condonation of 607 days days in filling the appeal. Counsel for the parties have been heard. For the reasons stated in the application delay in filing the appeal is condoned. Application allowed. R.S.A. No.3247 of 2007 The appellants-plaintiffs who are 11 in number have filed the present Regular Second Appeal for setting aside the judgments and decrees dated 30.05.2003 and 03.01.1996 passed by the learned Civil Judge(Senior Division) Bhiwani and Learned District Judge, Bhiwani. The brief facts giving rise to the matter in controversy are given as under:-

2. That the plaintiffs-appellants filed Civil Suit No.365 of 1997 for declaration to the effect that the order no.4593/Admn., dated

12.05.1997 fixing the regular service of the plaintiff and other seniority list of the clerks working in the Board of School Education, Haryana on 27.08.1997 prepared and circulated by defendant no.1 vide memo no.6501/Admn. Dated 9.9.1997 wherein the plaintiffs have been shown to be junior to defendants no.2 to 96 are illegal, unjustified, arbitrary, biased, against the service rules against record, against the principles of natural justice and not binding on the rights of the plaintiffs and are Regular Second Appeal No.3247 of 2008 # 7# liable to be set aside.

3. It was averred by the plaintiffs that they initially joined service of the Board of School Education, Haryana (hereinafter referred to as 'Board') as Class IV, but they were possessing the qualification for the post of Clerk and many posts of clerks were lying vacant. As such, they were promoted as Clerks vide order dated 27.06.1994 and since then they have been working as such. In the promotion order dated

27.06.1994 it was mentioned that the promotion is subject to probation period of six months. It was also mentioned that the plaintiffs would be treated as junior to the Clerks working in the board at that time. Defendants no.2 to 96 were appointed as Clerks on direct basis in July, 1994 and August 1995 i.e. much after the promotion of the plaintiffs. Seniority list of the Clerks working in the Board as on 27.08.1997 was prepared and circulated vide memo dated 09.09.1997 and in this seniority list, plaintiffs have been shown as juniors to respondent no.2 to 96. It is alleged that the promotion of the plaintiffs vide order dated

27.06.1994 was a substantive appointment against the promotion post and they should have been shown as senior to the Clerks appointed in July, 1994 and August, 1995. Plaintiffs filed representation against the order dated 12.05.1997 regarding fixation of date of regular service and also against the seniority list dated 09.09.1997, but no action was taken by the defendant no.1-Board. Ultimately plaintiffs filed civil suit challenging the order dated 12.05.1997 and seniority list mentioned above on the ground that plaintiffs were appointed against permanent post and were promoted as Clerks before the appointment of defendant Regular Second Appeal No.3247 of 2008 # 8# no.2 to 96 and the seniority list has been prepared in contravention of the terms and conditions of the appointment order dated 27.06.1994.

4. After notice defendants no.81, 51 and 62 not appeared, hence were proceeded against ex-parte. Defendant no.95 and 96 initially appeared but later on failed to appear and they were also proceeded against ex-parte. Defendant no.1-Board filed written statement raising number of pleas including preliminary objections as to locus standi, cause of action, maintainability, estoppel, etc. On merits it has been submitted that on the basis of representation submitted by the plaintiffs, they were given promotion as Clerk purely on adhoc basis vide order dated 27.06.1994 and their promotion was pre-mature as they had not completed five years service as Class-IV post. They were promoted on the posts of Clerks with clear cut condition that they will be considered for regular appointment on the post of Clerk after completion of five years regular service as Class IV, as required under the regulation. Plaintiffs were regularized vide order dated 12.05.1997 w.e.f. April 1996 after completion of five years regular service. Their seniority was fixed from the date of regularization of service in the cadre as provided in the service regulations and government instructions. Defendant no.2 to 96 were recruited as Clerk on regular basis directly in July, 1994 and August, 1995 and the plaintiffs were regularized as Clerks w.e.f. April, 1996. Therefore, the action of the defendant no.1-Board is legal and justified being according to the rules and as such plaintiffs have rightly been treated as Junior to defendant no.2 to 96. Private defendants no.2, 5, 7, Regular Second Appeal No.3247 of 2008 # 9# 31, 33 to 40, 42 to 50, 52, 55 to 61, 63 to 80 and 82 to 94 filed separate and joint written statements raising number of pleas including preliminary objections similar to defendant no.1 and on merits also it was submitted that defendant no.2 to 39 were appointed on daily wage basis on 13.6.1994 whereas plaintiffs were promoted as Clerks in August, 1995 and the services of the plaintiffs were regularized on

12.5.1997. Seniority list was prepared rightly and plaintiffs have been shown junior rightly to the private defendants.

5. Plaintiffs filed replication to the written statement of all the defendants and controverted the allegations in the written statement and reiterated their stand taken in the plaint. Out of the pleadings of the parties the following issues were framed:-

1. Whether the order no.4593/Admn. Dated 12.05.1997 circulated vide memo no.6501/Admn. Dated 9..1997 is illegal, null and void, unjustified, arbitrary, biased, against service rules and liable to be set aside and ignored, as alleged?OPP.

3. If issue no.1 is proved whether the plaintiffs are entitled for permanent injunction restraining the defendants to promote any person on the basis of memo no.6501/Admn. Dated 9.9.1997?OPP. If issues no.1 and 2 are proved, whether the plaintiffs are entitled for the relief of mandatory injunction directing the defendants to prepare fresh seniority list of the plaintiffs and defendants, as alleged?OPP.

4. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPP.

5. Whether the suit is not maintainable in the present form?OPD.

6. Whether the plaintiffs have no cause of action to file the present suit?OPD. Regular Second Appeal No.3247 of 2008 # 10#

7. Whether the suit is false, frivolous and the defendants are entitled for special costs?OPD.

8. Relief.

6. Plaintiffs examined Rati Ram, Superintendent as PW-1, Kirori, Plaintiff no1. As PW-2 and closed the evidence. Defendants examined Jagdish Kumar Saini, Assistant(Admn.) as DW-1, Nepal Singh as DW-2 and closed their evidence. Learned trial court decided the issues are under:- Issue no.1 & 2 decided against the plaintiffs. Issue no.3 decided against the plaintiffs. Issue no.4,5 & 6 decided against the defendants. Issue no.7 was not pressed and hence decided against the defendants.

7. Suit of the plaintiffs was dismissed with costs. Feeling aggrieved, plaintiffs filed appeal before the Learned District Judge, Bhiwani but the same was also dismissed by the District Judge vide judgment and decree dated 03.01.2006. Hence the present R.S.A.

8. Record of the case reveals that plaintiffs placed on record promotion order dated 27.6.1994 as Ex.P-1, office order dated 6.5.1997 circulated vide letter dated 12.5.1997 Ex.P-2 and memorandum dated

9.9.1997 as Ex.P-3. Provisional seniority list was placed on record as Ex.P-4 and representation of the plaintiffs as Ex.P-5. On the other hand documents Ex.D-1 is the list of defendants appointed directly as Clerks, D-2 is letter dated 6.5.1994, Regular Second Appeal No.3247 of 2008 # 11# Ex.D-3 letter dated 16.11.1997 and Ex.D-4 letter dated 12.5.1997. From the documents it is proved that the defendant no.2 to 96 were appointed directly as Clerks in the month of July and August 1995 and on the other hand plaintiffs completed five years experience in the month of April, 1996. Hence their services were regularized w.e.f. April 1996.

9. Regulation 16 of the Employees Service Regulations of the Board deals with the seniority of members of service which reads as under:- Regulation 16 SENIORITY OF MEMBERS OF SERVICE: The seniority interse of members of the service in each cadre shall be determined by the length of continuous appointment on a post in that cadre. Provided that in the case of different cadres, the seniority shall be determined separately for each cadre. Provided further that in case two or more persons are appointed in the same cadre on the same date, their seniority shall be determined as follows: Note: i) ii) Seniority of Members appointed on purely temporary basis shall be determined as and when they are regularly appointed keeping in view the date of such regular appointment. In the case of member whose period of probation is extended under regulation 15 the date of appointment for purpose of this regulation may be deferred to the extent the date of confirmation is postponed (if so orders) as a result of extension in the period of probation.” It is on record that the plaintiffs were promoted on adhoc basis for a Regular Second Appeal No.3247 of 2008 # 12# period of six months. They continued on adhoc basis after six months. Ex.D-3 is the sanction of the Board dated 26.9.1994 which says that premature promotion was given to Class-IV employees i.e. To the plaintiffs. Even annual increments to the post of clerk was to be given to the plaintiffs, after one year of completion of five years service experience as Class-IV. It was also decided by the Board that till the completion of five years experience, the plaintiffs would work on adhoc basis till the completion of five years experience and only after completion of five years experience, they were entitled to get their service regularized.

10. Plaintiffs completed five years regular service in the lower post in the month of April, 1996, hence their services were rightly regularized w.e.f. April 1996. Defendants no.2 to 96 were directly appointed in July, 1994 and August, 1995. Hence they were rightly placed senior. Ex.P-2 reveals that Class-IV promoted as Clerks pre- maturely would be regularized after completion of their five years service, which was pre-condition of their appointment letter and period of one year of their probation would be extendable to three years. Adhoc service cannot be counted towards seniority. In view of the ratio of judgment in Punjab State Electricity Board, Patiala through its Executive Engineer, Ropar Versus Bimal Kumar, 2001(1) RSJ, 219, and pursuant to Regulation 16, since the plaintiffs-appellants had not completed five years of service which was pre-condition of their appointment at the time of their promotion as clerk, therefore, they are not entitled to be shown as senior to the defendants, who were recruited Regular Second Appeal No.3247 of 2008 # 13# directly much prior to completion of five years service by plaintiffs- appellants. Hon'ble Supreme court in case titled Sanjay K. Sinha-II & Others Versus State of Bihar and Others, 2004(3) RSJ 789 has specifically held that appointment made contrary to the rules are merely fortuitous and do not confer benefit of seniority on the appointees over and above regular/substantive appointees to the service. It is on record that appellants were given pre-mature promotion on their representation, Ex.P-5. Similar view has been taken by Division Bench of this court in case P.K. Nayar Vs. K.K. Rohila & Others, 2004(3) RSJ 753 that when an initial appointment is on adhoc basis, the seniority will reckon only from the date of regular appointment as adhoc appointment are made do-hors of the service rules.

11. In view of the aforesaid settled legal position & facts and circumstances of this case, there is no law point much less substantial question of law involved in this second appeal. Hence the same is dismissed. No costs. ( JASWANT SINGH ) JUDGE 05th March, 2010