State of Punjab and Anr. v. Ashwani Kumar and Ors.

Judgment

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5892 of 2008 _From the final Judgment and Order dated· 20.4.2004 of the High Court of Punjab and Haryana at Chandigarh in CWP ,: No. 12230 of 2003 K.K. Khurana, A.AG., Arun K. Sinha for the Appellants. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.

1Leave granted.

2Challenge in this appeal is to the order passed by a G Division Bench of the Punjab and Haryana High Court holding that the ad-hoc services of the respondents were to be counted for the purpose of seniority. Reliance was placed on certain other orders of the High Courts passed earlier. It is stated by - learned counsel for the appellants that this Court had occasion ·A to deal with the appeals filed by the State questioning correctness of the judgments on which reliance has been placed by the High Court. Respondents were initially appointed during the period 1978 to 1987 as Clerks on ad-hoc basis and were regularized between the period from 1980 to 1Q90. Respondents B submitted reRresentations clair:ning th.e benefit of their ad-hoc ser'1ices relying on the judgment tQ which reference has been made by the High Court in the impugned judgment. Prayer was to the effect that the ad-hoc service was to be counted for all int.ents and purposes including seniority.

3The main question !hat a_rises for consideration in this appeal is yvhether the period of ad-hoc services rendered by the respondents is to be included for .calculating ihe seniority. This question was cons_idered by a three-Judge Bench of this Courtin State of Haryana v. Haryana Veterinary & AHTS Association and Anr. (2000 (8) SCC 4) wherein this Court took the view that for calculating &/18 years service required for giving higher scale of pay and for determination of seniority only regular service rendered by the employee is to be counted and not ad-hec service.

4Learned counsel for the respondents strenuously contended that the respondents who are Cle_rks serving under the State of Punjab are governed by a set of Rules and circulars different from those which were considered in the decided case and, therefore, the ratio in that case will not be applicable in these cases. We have carefully ~onsidered the said contention. We have also consid~red the Government Letter No.4/8/ 85-3PPl/4408 dated 13.3.1996 containing the policy instructions. On a plain reading of the letter, it is clear that the instructions contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad-hoc service should be taken into account for the purpose. This letter in our view ·can no lbnger form the basis of the contention in view of the recent decision by this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra).

Undisputedly, the respondents at the time of their appointment were governed STATE tlF PUNJAB & ANR. v. ASHWANI KUMAR & ORS. [DR. ARIJIT PASAYAT, J.] by lhe Punjab Civil Services (General and Common Conditions of service) Rules, 1994. In Rule 8 of the said Rules if is provided that the seniority of fhe persons appointed on purely provisional basis or on ?d-hoc basis shall be determined as and when they are regularly appointed keeping in view the date of such regular' appointment. Further, in the orders appointing the respondents on ad-hoc basis, it was specifically sfated that they will be governed by the aforementioned Rules. It was furthe,r · stated in paragraph Ill of the appointment letter that the appoin" tees' seniority will be determined only by merit in which he or . she is placed by Punjab Public Service Commission. Thus it is Cr · clear that only regular service is to be counted towards senior- . ity.

5We do not .feeHt necessary to delve fu"rther into merits of the· cifae in· view .of the decision· otthis Court in State of Hayana v. Har/aha Veterinary & AHTS Association and Anr. (supra). We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the. judgrrienUorder passed by the High 9ourt holding that ad-hoc . service is to be.included in calculating the period of.service for , ·giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgmenU order of the High Court under challenge is set aside. 6: However, we make it clear th"at if any of the respondents has drawn any amount on the basis of the High Court's ~ · judgment granted to by inclu.ding the period of his ad-hoc ser- . vice then the State Government shall not recover the amount. · already dra~n by the employee though fo~ fixation of the cadre seniority the position as laid down in this order will govern. No costs. B.B.B. · Appeal allowed.·