Dismissed

Dalip Singh & Ors. v. State of Punjab & Ors.

Punjab & Haryana HC9 Nov 2009CWP/3233/1991

Case brief

AI extract

What is this about?

The court disposed of three writ petitions challenging the exclusion of adhoc service for determining seniority and promotion benefits. The High Court dismissed the petitions, upholding the validity of government rules and relying on Supreme Court precedents that exclude adhoc service from seniority calculations.

What did the court decide?

The petitions challenging the exclusion of adhoc service for seniority and promotion benefits were dismissed.

Dalip Singh & Ors. Vs State of… — Pension and Retirement Benefits | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Writ Petition No. 3233 of 1991

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DATE OF DECISION : NOVEMBER 9, 2009

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DALIP SINGH & ORS.

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....... PETITIONER(S)

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VERSUS

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THE STATE OF PUNJAB & ORS.

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.... RESPONDENT(S)

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CORAM : HON'BLE MR. JUSTICE AJAI LAMBA

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PRESENT: Ms. Divya Godara, Advocate, for the petitioner(s). Ms. Charu Tuli, Senior DAG, Punjab.

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AJAI LAMBA, J. (Oral)

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This order shall dispose of three petitions viz. CWP 871 of 1991 (Mohan Sarup Joshi and others v. The State of Punjab and another), CWP 3233 of 1991 (Dalip Singh and others v. The State of Punjab and another), and CWP 13100 of 1991 (Limber Kaur and others v. The State of Punjab and another), as common questions of law and fact are involved. In all these three petitions, the same department is the respondent. The claim is for similar relief.

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Civil Writ Petition No. 3233 of 1991

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For reference to facts, record of CWP 871 of 1991 (Mohan Sarup Joshi and others v. The State of Punjab and another), is being taken up.

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This petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of mandamus directing the respondents to give the benefit of adhoc service to the petitioners for the purposes of seniority, promotion and other consequential service benefits.

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It has been pleaded that the petitioners were appointed as Clerks on adhoc basis in the Department of Finance (Treasury and Accounts) on different dates. Subsequently, they were appointed on regular basis in the clerical cadre of the same department.

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The Association of the cadre to which the petitioners belong, made a representation on 2.11.1989 stating therein that the petitioners are entitled to the benefit of adhoc service for the purposes of promotion, seniority, proficiency step-up and other benefits.

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Learned counsel for the respondent-State contends that under the provisions of the rules/instructions issued by the Government, the adhoc service cannot be counted for the purposes of seniority. Seniority of members appointed purely on provisional basis is to be determined as and when they are regularly appointed by way of regular appointment. The seniority of the petitioners has been determined strictly as per the rules/instructions and no illegality can be traced in the action of the respondents.

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Learned counsel for the respondent-State states that on the

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Civil Writ Petition No. 3233 of 1991

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issue, reference may be made to the law as laid down by the Hon'ble Supreme Court of India in State of Punjab and others v. Gurdeep Kumar Uppal and others, JT 2001 (5) SC 57, in accordance with which the relief has been granted to the petitioners. In Gurdeep Kumar Uppal's case (supra), the following has been held (in paras 4 and 6):-

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“4. The main question that arises for consideration in these appeals in whether the period of ad hoc services rendered by the respondents is to be included for calculating the period of 8 or 18 years of service for giving higher scale of pay under the proficiency step-up scheme. This question was considered by a three Judge Bench of this Court in the State of Haryana v. Haryana Veterinary & AHTS Association and Another (JT 2000(10) SC 561) wherein this Court took the view that for calculating 8/18 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 hoc service.”

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“6. We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Haryana v. Haryana Veterinary AHTS Association and Another (supra). We are satisfied that the ratio in that case applies to the cases in hand. The resultant position that emerges is that the judgment/orders passed by the High Court holding that ad hoc service is to be included in calculating the period of service for giving the higher scale of pay are unsustainable and has to be vacated. Accordingly, the appeals are allowed and the judgments/orders of the High Court under challenge are set aside.”

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So far as the claim for seniority is concerned, reference has

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been made to the judgment in Union of India through Chandigarh Admnistration (U.T.) Chandigarh and another v. Sh. S.K. Sharma,

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Civil Writ Petition No. 3233 of 1991

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Professor of Civil Engineer Punjab Engineering College, Chandigarh, JT 1992(2) S.C. 491. In paras 7 and 8 of the judgment, the following has been held :-

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“7. In D.N. Agrawal and Anr. v. State of Madhya Pradesh and Ors., (1990) 2 SCC 553 it was held that regular appointment at later date cannot relate back to the date of ad hoc appointment and the employee is not entitled to claim the period of officiation between the dates of ad hoc appointment and regular appointment for being counted for the purpose of seniority. A Constitution Bench of this Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Others, (1990) 2 SCC 715 held as under :

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"Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Seniority cannot be determined on the sole test of confirmation, for, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority conform to the principles of equality spelt out by Articles 14 and 16. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority".

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In the circumstances mentioned above we are clearly of the view that the respondent was not entitled to claim his seniority on the post of Professor (Senior Scale) from 28.9.1969 and the appellants had rightly counted his seniority from 29.9.1973 when he was regularly selected in

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Civil Writ Petition No. 3233 of 1991

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accordance with the rules on the said post. In the result we allow this appeal, set aside the Judgment of the Tribunal dated 3.3.1988. In the circumstances of the case we direct no order as to costs.”

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Learned counsel for the respondent-State contends that the relief has been given to the petitioners strictly in accordance with the law laid down by the Hon'ble Supreme Court of India in the aforesaid judgments, as extracted above.

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Learned counsel for the petitioners has not been able to point out anything contrary to what has been stated by the learned counsel for the respondent-State. Replication has not been filed to controvert the stand taken by the respondents in the written statement.

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In view of the assertion that the claim has been given in conformity with the judgments of the Hon'ble Supreme Court of India, reference to which has been made hereinabove, there is no merit in these petitions and the same are dismissed.

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November 9, 2009 ( AJAI LAMBA ) Kang JUDGE

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

Dalip Singh & Ors. v. State of Punjab & Ors.

Case brief

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Dalip Singh & Ors. v. State of Punjab & Ors.

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