Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 13423 of 1996
PETITIONER:
STATE OF HARYANA
RESPONDENT:
HARYANA VETERINARY & A.H.T.S. ASSOCIATION AND ANR.
DATE OF JUDGMENT: 19/09/2000
BENCH:
G.B. PATTANAIK & D.P. MOHAPATRA & DORAISWAMY RAJU
JUDGMENT:
JUDGMENT
2000 Supp(3) SCR 322
The Judgment of the Court was delivered by
PATTANAIK, J. Delay condoned.
Leave granted in SLP (C) Nos. 5518/97, 2948/98, 19093/98, 9932/2000 & SLP
(C) NO. 17724/2000 (CC No. 3881).
PATTANAIK, J. In these batch of appeals, filed by the State of Haryana, the
question for consideration is, the services rendered by an ad hoc appointee
on the basis of appointment made de hors the Recruitment Rules whether can
be counted for earning the benefits of higher scale of pay under the
Government Memorandum, such appointees on being regularly appointed in
accordance with the Recruitment Rules at a later point of time? Different
appeals concern with the appointments made under the different departments
of the State of Haryana. In all these appeals the Full Bench decision in
Rakesh Kumar’s case has been followed and, therefore, we have chosen to
deal with the appeal relating to R.K. Singla (Civil Appeal No. 5192 of
1997).
Rakesh Kumar Singla filed Civil Writ Petition No. 15031 of 1993, praying
for issuance of mandamus to the State of Haryana in the Department of
Irrigation and Power as well as to Engineer-in-Chief in Chief Irrigation
Department to grant him selection grade in the cadre of Assistant Engineer.
It was alleged in the Writ Petition that he joined the post of Assistant
Engineer on ad hoc basis on 4.1.1980 and later on applied to the Haryana
Public Service Commission for being considered for the said post of
Assistant Engineer on regular basis in accordance with the Statutory Rules.
He was selected by the Haryana Public Service Commission and he was
appointed on regular basis with effect from 29.1.1982. He prayed for grant
of selection grade on completion of total period of service for 12 years
commencing from 4.1.1980 in accordance with the circular of the Government
of Haryana dated 2.6.1989. The Government, however, did not grant him the
relief sought for and said Shri Singla then approached the High Court by
filing the Writ Petition. According to the writ petitioner, since he was
duly appointed on being selected by Public Service Commission on 29.1.1982,
and prior to that had been appointed as Assistant Engineer on ad hoc basis
on 4.1.1980, his continuous service from 1980 should be counted for the
purpose of 12 years service, to earn the benefit under the Government
Circular dated 2.6.1989 and, therefore, he is entitled to get the selection
grade scale with effect from January 1992. The State Government resisted
the claim of the respondents by contending, inter alia thai I he
appointment of Rakesh Kumar Singla on 4.1.1980 was purely on ad hoc basis
and was not in accordance with the provisions of Recruitment Rules and he
got the regular appointment only on 29.1.1982 and, therefore, 12 years
period required for getting the benefits under the Government Circular
dated 2.6.1989 would count from the said date of 29.1.1982 and not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
4.1.1980, as contended by the respondent. The aforesaid Writ Petition was
listed before a Division Bench and the Bench was inclined to dismiss the
Writ Petition by interpreting the Circular letter dated 2.6.1989 to mean
that under the Circular it is only completion of 12 years regular service
that would entitle the employee concerned for getting the benefit under the
Circular, but since in another case a Coordinate Bench had taken a
different view it was thought fit to refer the matter to a larger Bench,
and accordingly, the Division Bench passed orders on July 27, 1994
directing that the case be placed before the Chief Justice for constitution
of a larger Bench for deciding the issue; "whether the service rendered as
a result of ad hoc appointment could be counted for the purpose of 12 years
regular service in the context of Circular No. 638/3 PR (FD) - 87 dated
2.6.89 of the Government of Haryana". Because of this order the case was
placed before three Hon’ble Judges of the High Court. Justice Jawahar Lal
Gupta on consideration of relevant Circular as well as several other
materials on record came to the conclusion that the expression "Regular
Service" in the context of circular dated 2nd June, 1989, of the Government
of Haryana implies the service rendered by a person after the appointment
in accordance with the Rules governing the recruitment to the post and the
service rendered by a person on ad hoc basis or otherwise, which is not in
conformity with the Rules cannot be taken into consideration for the
purpose of determining his seniority nor can it be taken into consideration
for the purpose of computing the prescribed period of service under the
Circular. The learned Judge, therefore, answered the reference against the
employee. The majority view, however, was expressed by Hon’ble Sethi, J.
(as he then was), who came to the conclusion that if the initial
appointment is made following the procedure laid down by the Rules and the
appointee continues on the post uninterruptedly till the regularisation of
the service in accordance with the Rules then his period of ad hoc service
shall be counted for the purpose of seniority and necessarily therefore
such period would also ensure to the benefit of the employee for
computation of the period of 12 years of regular service under the Circular
dated 2.6.1989 The learned Judge was of the opinion that on reading the
Circular dated 2 6.1989 it cannot be held that the intention of the
Government was to deprive the claim of civil servants who are otherwise
entitled to the benefit of ad hoc service for the purpose of the higher
scale of pay on completion of 12 years service under the Circular dated
2.6.1989. On this conclusion the majority judgment allowed the claim of the
Writ Petitioner R.K.. Singla.
Mr. Jain, the learned senior counsel appearing for the State of Haryana
assails the legality of the majority view in Rakesh Kumar’s case expressed
through Hon’ble Justice Sethi, as he then was, on following grounds :
1. Circular of 89 (2.6.1989) having unequivocally indicated that the
category of employees would get the higher scale of pay on completion of 12
years of regular service the High Court committed serious error in
importing the Government intention into the same in deciding the matter on
assumption. According to Mr. Jain the further Circular dated 16th May,
1990, having clarified the position and having categorically indicated that
the selection grade can be claimed by an employee after 12 years of regular
service, the High Court was not justified in directing that the period of
ad hoc service should also be counted for the computation of 12 years
period. According to Mr. Jain the recruitment to the post of Assistant
Engineer being governed by a set of Rules framed under Article 309 of the
Constitution called the Haryana Service of Engineers, Class II, Public
Works Department (Irrigation Branch) Rules, 1970, (hereinafter referred to
as ’Recruitment Rules’), the so called ad hoc appointment of Rakesh Kumar
in the year 1980 being de hors the provisions of the Recruitment Rules, the
aforesaid services till the appointment was made on regular basis cannot be
held to be regular service contemplated under the Government Circular dated
2nd June, 1989, and therefore, cannot be counted for computing the 12 years
of regular service which is required to earn the benefits of the Circular
dated 2nd June, 1989. Mr. Jain also referred to the different provisions of
the Recruitment Rules and contended that by no stretch of imagination the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
services rendered by an ad hoc appointee can be held to be regular service
and the majority view of the High Court, therefore, is erroneous. The
learned counsel also contended, on the basis of the very appointment letter
which had been issued to Rakesh Kumar on 6.12.1979, on the basis of which
he had joined the services on 4.1.1980, that in view of the terms of
conditions of the appointment the High Court in the majority judgment
committed serious error of law in directing that the period of ad hoc
appointment would also be counted for computation of 12 years of service
under the Government Memorandum dated 2nd June, 1989. Mr. Jain lastly
contended that the appointment letter that was issued to Rakesh Kumar on
29.1.1982 is in fact a fresh appointment after Rakesh Kumar was selected by
the Haryana Public Service Commission pursuance to the application made by
him to the Service Commission, and as such the earlier services rendered by
him on an ad hoc basis cannot be tagged on to his regular services from
1982 for the purpose of computation of 12 years period to earn the benefit
of higher scale of pay under the Government Circular dated 2nd June, 1989
and the majority judgment is, therefore, wholly unsustainable in law. When
the matter was called since the counsel appearing for the respondent were
not present we heard Mr. Jain at length and perused the different circulars
and the provisions of the Rules, as pointed out for deciding the
correctness of the submissions made by Mr. Jain, learned senior counsel
appearing for the State of Haryana.
Coming to the Circular dated 2nd June. 1989, issued by the Financial
Commissioner and Secretary to the Government of Haryana, Finance
Department, it appears that the aforesaid Circular had been issued for
removal of anomalies in the pay scale of Doctors, Deputy Superintendents
and Engineers, and so far as engineers are concerned, which are in Class 1
and Class II, it was unequivocally indicated that the revised pay scale of
Rs. 3,000 to Rs. 4,500 can be given alter completion of 5 years of regular
service and Rs. 4,100 to Rs. 5,300 after completion of 12 years of regular
service. The said Financial Commissioner had issued yet another Circular
dated 16th May, 1990, in view of certain demands made by officers of
different departments. The aforesaid Circular was issued after re-
consideration by the Government modifying to some extent the earlier
Circular of 2nd June, 1989, and even in this Circular it was categorically
indicated that so far as Engineers are concerned, they would get Rs. 3,000
to 4,500 after 5 years of regular and satisfactory service and Selection
Grade in the scale of pay of Rs. 4,100 to Rs. 5,300. which is limited to
the extent of 20% of the cadre post should be given after 12 years of
regular and satisfactory service. The aforesaid two Circulars are
unambiguous and unequivocally indicate that a government servant would be
entitled to the higher scale indicated therein only on completion of 5
years or 12 years of regular service and further the number of persons to
be entitled to get the selection grade is limited to 20% of the cadre post
This being the position, we fail to understand how services rendered by
Rakesh Kumar from 1980 to 1982, which was purely on ad hoc basis, and was
not in accordance with the statutory rules can be taken into account for
computation of period of 12 years indicated in the Circular. The majority
judgment of High Court committed serious error by equating expression
"regular service’ with "continuous service’’. In our considered opinion
under the terms and conditions of the Circulars dated 2nd June, 1989 and
16th May, 1990, the respondent Rakesh Kumar would be entitled for being
considered to have the Selection Grade on completion of 12 years from 29th
January, 1982 on which date he was appointed duly against a temporary post
of Assistant Engineer on being selected by the Public Service Commission
and not from any earlier point of time. The conclusion of the majority
judgment in favour of Rakesh Kumar, therefore, cannot be sustained.
The contention of Mr. Jain, learned senior counsel, appearing for the State
of Haryana, with reference to the provisions of Recruitment Rules is also
well founded, as would appear from the analysis made hereunder.
Under the Recruitment Rules which had been made in exercise of powers
conferred by the Proviso to Article 309 of the Constitution "Member of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
Service" means an officer appointed substantively to a cadre post and
includes in case of a direct appointment an officer on probation or an
officer who having successfully completed his probation awaits appointment
to a cadre post. In case of an appointment by transfer an officer who is on
probation or who having successfully completed the probation awaits
appointment to a cadre post.
Under Rule 6 of the Recruitment Rules, recruitment to the services in the
cadre post could be made both by way of direct appointment as well as by
promotion in the proportion from different sources mentioned in the said
Rule. Sub-rule (3) of Rule 6 authorises appointment to a cadre post as
stopgap arrangement from sources other than the allotted source when a
candidate from the allotted source is not available from source 1 and 3,
but such appointee is liable to be reverted to his original cadre when a
candidate from the allotted source is available and the period of service
rendered by such person shall not be reckoned for the purpose of his
seniority.
Sub-rule (4) of the Rule thus enables the State Government to fill up a
short-term vacancy in the exigencies of public service after recording
reasons for a period not exceeding six months in each case without
resorting to the select list prepared under Rule 9.
Under Rule 8 appointment to the service has to be made by way of direct
recruitment strictly in the order of merit indicated by the Public Service
Commission depending upon the number of vacancies available in the Cadre.
Under Rule 9 appointment by promotion-can be made from the panel to be
prepared on the basis of merit and suitability in all respects with due
regard to seniority, which list has to be forwarded to the Public Service
Commission and the Commission on consideration of the list prepared by the
Government alongwith other documents received, can make such changes as
necessary and would then forward the approved list to the State Government.
It is from this list appointment to the service has to be made by the
Government in the order in which names have been placed by the Commission,
as provided under sub-rule (9) of Rule 8.
Rule 11 provides for continuation on probation for a period of 2 years and
Rule 12 is the Rule for seniority.
A combined reading of the aforesaid provisions of the Recruitment Rules
puts the controversy beyond any doubt and the only conclusion which could
be drawn from the aforesaid Rules is that the services rendered either on
ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980
to 1982 cannot be held to be regular service for getting the benefits of
the revised scale of pay or of the selection grade under the Government
Memorandum dated 2nd June, 1989 and 16th May, 1990, and therefore, the
majority judgment of the High Court must be held to be contrary to the
aforesaid provisions of the Recruitment Rules, consequently cannot be
sustained. The initial letter of appointment dated 6.12.1979 pursuant: to
which respondent Rakesh Kumar joined as an Assistant Engineer on ad hoc
basis in 1980 was also placed before us. The said appointment letter
unequivocally indicates that the offer of appointment as Assistant Engineer
was on ad hoc basis and Clauses 1 to 4 of the said letter further provides
that the appointment will be on ad hoc basis for a period of 6 months from
the date of joining and the salary was a fixed salary of Rs. 400 p.m. in
the scale of Rs. 400 to Rs. 1100 and the services were liable to be
terminated without any notice and at any time without assigning any reason
and that the appointment will not enable the appointee any seniority or any
other benefit under the Service Rules for the time being in force and will
not count towards increment in the time scale. In view of the aforesaid
stipulations in the offer of appointment itself we really fail to
understand as to how the aforesaid period of service rendered on ad hoc
basis can be held to be service on regular basis. The conclusion of the
High Court is contrary to the very terms and conditions stipulated in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
offer of appointment and, therefore, the same cannot be sustained. The
regular letter of appointment dated 29.1.1982 in favour of Rakesh Kumar was
also produced before us and that letter indicates that the respondent
Rakesh Kumar alongwith others had applied to the Secretary, Haryana Public
Service Commission for being appointed as an Assistant Engineer and the
Service Commission after selecting the number of persons prepared a list
and appointment letters were issued by the Government from the said list on
the basis of the merit position of different candidates. Thus the
appointment of respondent Rakesh Kumar was a fresh appointment in
accordance with the Statutory Rules after the Public Service Commission
adjudged their suitability and the regular service of the respondent Rakesh
Kumar must be counted from the date he joins the post pursuant to the offer
of appointment dated 29.1.1982 and the prior service rendered by him on ad
hoc basis cannot be held to be regular service nor can it be tagged on to
the later service for earning the benefit under the Government Circular
dated 2nd June, 1989 as well as the Clarificatory Circular dated 16th May,
1990. The conclusion of the majority judgment of the High Court, therefore,
is wholly erroneous and cannot be sustained.
In view of our conclusions, as aforesaid, the majority judgment of the
Punjab and Haryana High Court and the directions contained therein is set
aside and it is held that 12 years period of respondent Rakesh Kumar could
be counted from year 1982 for being eligible to get the Selection Grade
under the Government Circular dated 2nd June, 1989 as well as clarificatory
Circular dated 16th may, 1990. The Civil Appeal filed by the State of
Haryana stands allowed.
Since the judgment of Rakesh Kumar has been followed in all other cases
which are also the subject matter of appeal before this Court in the tagged
on matters, following the conclusions arrived at by us in Rakesh Kumar’s
case the impugned judgment and direction in all these matters are set aside
and the appeals filed by the State of Haryana stand allowed.
Delay in filing the application for substitution in C.A. No. 179/97 is
condoned, and application for substitution stands allowed.
Along with these matters, sixteen other cases (C.A. Nos. 5740-41/97,
6070/97, 24/98, 5833/98, 444/99, 808/99, 1461/99, 2649-2653/99, 1143/98,
844/ 2000, 1887-88/2000,4487/2000 and S.L.P. (Civil) Nos. 9767/98,
19091/98, 5425/ 98 and 5424/99) had also been tagged on but in those cases
the employees were initially appointed on work-charge basis and later on,
their services stood regularised and one of the contentions of the
respondents is that the period rendered on work-charge basis count for
seniority, increment and pension. In this view of the matter, those cases
are de-linked and would be listed afresh for hearing.