TMI Blog2021 (9) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... ARATHNA FOR THE PETITIONER Mr. P.S. Patwalia, Ms. Pragati Neekhra, Ms. Manju Jetley, Mr. Subhasish Bhowmick, FOR THE RESPONDENT Ms. Ranjeeta Rohatgi, Mr. Arun K. Sinha, JUDGMENT 1. Leave granted. 2. This batch of appeals arises from a judgment and order dated 15 March 2011 of a Division Bench of the High Court of Punjab and Haryana. 3. For convenience of reference, the facts as they emerged in the lead Civil Appeal CA 6026-6028/2021 @ SLP(C) 14029-14031/2011 may be set out. 4. The appellants were appointed as clerks in 1975-1976 in the Punjab Civil Secretariat on an ad hoc basis. On 3 May 1977, their services were regularized with effect from 1 April 1977 pursuant to a policy of regularization. The policy of regularization notes that in anticipation of regular appointments, ad hoc appointments were resorted to by various appointing authorities in administrative interest after notifying the vacancies to the employment exchange or, as the case may be, by issuing advertisements. Since the ad hoc employees had acquired experience, and their ouster after a considerable period of service would entail hardship, their services were regularized, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass III) Rules 1976, the seniority inter se of members of a service in each cadre would be determined by the length of continuous service on a post in the cadre of service. The Single Judge held that while the petitioners before the High Court had been regularized from 1 April 1977, the private respondents were appointed subsequently. As a consequence, those who were appointed subsequently could not claim seniority over those who were regularized prior to their appointment. Besides the above finding, Single Judge held that in view of the decision of this Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra (1990) 2 SCC 715 , once the services had been regularized they would relate back to the date of their initial appointment and the ad hoc service would have to be kept in view in determining seniority and other benefits. The petition was allowed in the above terms. 7. The judgment of the Single Judge was carried in a Letters Patent Appeal by the State of Punjab. The Division Bench, by its judgement dated 4 January 1993, held that the Single Judge was justified in coming to the conclusion that persons who had been regularized with effect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the High Court, which was allowed by a Single Judge of the High Court on 24 December 1997, on the basis of the decision in Malook Singh s case. Against the said judgment, a Letters Patent Appeal LPA No 133 of 1998 was preferred, which was allowed on 8 January 1999, adverting to the fact that in Gurmail Singh s case, the decision in Malook Singh had been overruled. Moreover, it was also observed that in the Letters Patent Appeal, which was filed before the Division Bench in Malook Singh s case, it was specifically observed that the judgment of the Single Judge would not be cited as a precedent to determine whether ad hoc service would be reckonable for the purpose of seniority. Against the judgement of the Division Bench of the High Court, Special Leave Petitions SLP No 8534-35 of 1999 were filed before this Court which were dismissed in limine on 19 July 1999. After adverting to these developments, the Single Judge came to the conclusion that it was a well settled principle that where the initial appointment is made without following due procedure in accordance with the mandate of Articles 14 and 16, ad hoc service would not count for the determination of seniority. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants in the appeal arising out of the lead Special Leave Petition SLP (C) Nos 14029-14031 of 2011 has urged the following submissions: (i) All the appellants have, as a matter of fact, received their promotions during the pendency of the proceedings and have retired, beginning well over a decade ago; (ii) When the appellants were appointed on an ad hoc basis, the initial appointment, strictly speaking cannot be construed to be of a back door entry having regard to the fact that the employment exchange was notified and they were selected by regular selection committees though not by the Punjab Subordinate Service Selection Board PSSSB ; (iii) The High Court has correctly come to the conclusion that as between the parties to the decision, in Malook Singh s case, the judgment would continue to bind notwithstanding the fact that it has been subsequently disapproved in another judgment of High Court; and (iv) In consequence, insofar as the State is concerned, it would be bound to give effect to the decision in Malook Singh and at this stage, all that the appellants would seek is that their pensionary payments be duly protected. 13. On the above premises, Mr Patw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court subsequently, but does not reflect the correct position in law, the impugned judgment of the Division Bench would need to be sustained. At the same time, learned counsel has expressed before the Court the practical difficulty of redrawing and revising the seniority list at this length of time in respect of persons who were appointed as far back as in 1977, all of whom have retired from service after receiving their promotion orders. 16. During the course of these proceedings, we have also heard Mr Arun K Sinha, learned counsel appearing on behalf of some of the contesting respondents and Mr Surjit Singh Swaich, learned counsel appearing on behalf of the appellants in the companion appeals. Insofar as the private respondents represented by Mr Sinha are concerned, it may be noted that their grievance specifically is in regard to the manner of appointment of the appellants. In the counter affidavit which has been filed in these proceedings on their behalf, it has been stated that the policy of the State of Punjab dated 3 May 1977 regularizing the services of the ad hoc employees with effect from 1 April 1977 clarified that seniority shall be determined with effect fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se essentially dealt with two facets. The first was that persons who were recruited after following the regular procedure for selection after the date of regularization of ad hoc employees on 1 April 1977 could not rank senior to those who had been regularized prior to their date of appointment. The second aspect on which the Single Judge held in favour of the petitioners in CWP No 2780 of 1980 was that once regularization takes place, the length of ad hoc service must count for the determination of seniority. It is important to note here that the second facet of the judgment of the Single Judge was specifically kept open in the Letters Patent Appeal by the Division Bench. Therefore, clearly the judgment in Malook Singh s case did not conclude the issue of whether ad hoc service would count for the purpose of determining seniority. 20. The law on the issue of whether the period of ad hoc service can be counted for the purpose of determining seniority has been settled by this Court in multiple cases. In Direct Recruits (supra), a Constitution Bench of this Court has observed: 13. When the cases were taken up for hearing before us, it was faintly suggested that the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Direct Recruits (supra) stands for the principle that ad hoc service cannot be counted for determining the seniority if the initial appointment has been made as a stop gap arrangement and not according to rules. The reliance placed by the Single Judge in the judgement dated 6 December 1991 on Direct Recruits (supra) to hold that the ad hoc service should be counted for conferring the benefit of seniority in the present case is clearly misplaced. This principle laid down in Direct Recruits (supra) was subsequently followed by this Court in Keshav Chandra Joshi v. Union of India 1992 Supp (1) SCC 272 . Recently a two judge Bench of this Court in Rashi Mani Mishra v. State of Uttar Pradesh 2021 SCC OnLine SCC 509 , of which one of us (Justice DY Chandrachud) was a part, observed that the services rendered by ad hoc employees prior to their regularization cannot be counted for the purpose of seniority while interpreting the Uttar Pradesh Regularization of Ad Hoc Appointment Rules. This Court noted that under the applicable Rules, substantive appointment does not include ad hoc appointment and thus seniority which has to be counted from substantive appointment would not incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counted from the date of such appointment and not from the date of confirmation. In the present case, it is not the case of confirmation of the service of ad hoc appointees in the year 1989. In the year 1989, their services are regularized after following due procedure as required under the 1979 Rules and after their names were recommended by the Selection Committee constituted under the 1979 Rules. As observed hereinabove, the appointments in the year 1989 after their names were recommended by the Selection Committee constituted as per the 1979 Rules can be said to be the substantive appointments . Therefore, even on facts also, the decision in the case of Direct Recruit Class II Engg. Officers' Assn. (supra) shall not be applicable to the facts of the case on hand. At the cost of repetition, it is observed that the decision of this Court in the case of Direct Recruit Class II Engg. Officers' Assn. (supra) was considered by this Court in the case of Santosh Kumar (supra) when this Court interpreted the very 1979 Rules. The notification dated 3 May 1977 stated that the ad hoc appointments were made in administrative interest in anticipation of regular appointments an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase were persons who had been recruited after 1 April 1977 albeit after following a regular process of selection. The judgment, therefore, would only bind those who are parties to the proceedings. The judgment would by no means operate to bind others whose interest did not coincide with the private respondents who are impleaded in the proceedings. This is precisely the reason why the Single Judge in the subsequent proceedings held that the seniority list which was prepared pursuant to the earlier judgment would not operate to bind those persons who were not parties to the earlier proceedings and were adversely affected. In this backdrop, there is no reason for this Court to take a different view than that which has weighed with the High Court in coming to the conclusion that in view of the express terms of the policy of regularization, seniority would date with effect from the date of regularization. 22. Having resolved the above issue, as a matter of principle, the Court is then left with moulding the relief. Both the appellants and the private respondents, as well as the appellants in the companion appeals have from time to time received their promotions during the pendency of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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