REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5892     OF 2008 (Arising out of S.L.P. (C.) No.11711 of 2006)

State of Punjab and Anr. …Appellants

Vs.

Ashwani Kumar and Ors. …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.   Leave granted.     

2. Challenge in this appeal is to the order passed by a

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  to  deal  with  the  appeals  filed  by  the  State

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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  1990.   Respondents  submitted  representations

claiming the  benefit  of  their  ad-hoc  services  relying  on  the

judgment  to  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 intents and

purposes including seniority.

4. The  main question  that  arises  for  consideration  in

this appeal is whether the period of ad-hoc services rendered

by  the  respondents  is  to  be  included  for  calculating  the

seniority.   This  question  was  considered  by  a  three-Judge

Bench of this Court in State of Haryana v. Haryana Veterinary

& AHTS Association and Anr. (2000 (8) SCC 4) wherein this

Court  took  the  view  that for  calculating 8/18 years  service

required for giving higher scale of pay and for determination of

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seniority only regular service rendered by the employee  is to

be counted and not ad-hoc service.

5. Learned  counsel  for  the  respondents  strenuously

contended that the respondents who are Clerks 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 considered the

said contention.   We  have  also considered  the  Government

Letter No.4/8/85-3PPI/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 longer 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

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of  their  appointment  were  governed  by  the  Punjab  Civil

Services (General and Common Conditions of service) Rules,

1994.   In  Rule  8  of  the  said  Rules  it  is  provided  that the

seniority of the persons appointed on purely provisional basis

or on ad-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 stated  that

they will be  governed  by the  aforementioned  Rules.  It was

further stated in paragraph III of the appointment letter that

the appointees’  seniority will be  determined only by merit in

which  he  or  she  is  placed  by  Punjab  Public  Service

Commission.  Thus it is clear that only regular service is to be

counted towards seniority.

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 Hayana v. Haryana Veterinary & AHTS Association and Anr.

(supra).  We are satisfied that the ratio in that case applies to

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the case in hand.  The resultant position that emerges is that

the judgment/order 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 is unsustainable and

has to be vacated.  Accordingly, the appeal is allowed and the

judgment/order  of  the  High  Court  under  challenge  is  set

aside.

7. However,  we  make  it  clear  that  if  any  of  the

respondents has drawn any amount on the basis of the High

Court’s judgment granted to by including the period of his ad-

hoc service then the State Government shall not recover the

amount already drawn by the employee  though for fixation of

the cadre seniority the position as laid down in this order will

govern.  No costs.                              

……..…………………..….……..J. (Dr. ARIJIT PASAYAT)

…….…………..……….………...J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: September 29, 2008        

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