JUDGEMENT
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(1.)JUDGMENT
(2.)THIS appeal is directed against the orders dated 10/12/1993 in R. A. No. 41C of 1993 arising out of a Civil suit filed by the respondent.
The respondent was initially appointed as Sub-Inspector in the Department of Food and Supplies of the Government of Haryana on 27/06/1968. The said appointment was on ad-hoc basis and the services of the respondent were terminated on 10/12/1968. Thereafter, the respondent was again appointed as Sub-Inspector in the Food and Supplies Department on 10/04/1969. He worked on the said post from 15/04/1969 till 15/10/1971 on which date his services were terminated. By order dated 26/10/1971 the respondent was reappointed on the post of Sub-Inspector in the Food and Supplies Department and in pursuance of the said order he joined duty on 15/11/1971. While he was thus employed on the said post, he was selected by the Subordinate Services Selection Board and was given regular appointment on the post of Sub-Inspector on 27/06/1972. He filed the suit giving rise to this appeal in the Court of Additional Senior Sub Judge, Karnal, wherein he prayed that the benefit of the services for the period from 27/06/1968 to Jun 27/06/1972 should be given to him in the matter of fixation of his pay and seniority etc. The Additional Senior Sub Judge, by his judgment dated 1/10/1987, partly decreed the said suit and held that the respondent is entitled to the benefit of the period of fixation of his pay but in the matter of seniority he was only entitled to count his service from 27/06/1968 (1972?) and that the earlier service could not be counted for that purpose. The appeal filed by the respondent against the said judgment of the Additional Senior Sub Judge was dismissed by the Additional District Judge, Karnal, by judgment dated 12/01/1989. The respondent thereafter filed a second appeal in the High Court of Punjab and Haryana which was allowed by judgment dated February 1, 1993 whereby it was held that the period of ad-hoc service rendered by the respondent shall be taken into consideration in the matter of fixation of his pay and seniority. The High Court has placed reliance on an earlier judgment of a learned single Judge of the said High Court in Des Raj v. State of Haryana, 1988 (3) SLR 242. The review petition filed by the appellant against the said judgment was dismissed by order dated 10/12/1993.
The learned counsel for the appellant has submitted that the High Court was in error in holding that the ad-hoc service rendered by the respondent should be taken into consideration in the matter of fixation of his seniority. In this context, the learned counsel has pointed out that apart from the fact that there were breaks in the service of the respondent during the periods from December 10, 196 8/04/1969 and 15/10/197 1/11/1971, the service of the respondent till 27/06/1972 was in the nature of ad-hoc service only and that it could not be taken into account for the purpose of seniority. The learned counsel has invited our attention to the terms of the order of appointment dated 26/10/1971 which contains the following conditions :-
"The appointments are purely temporary on (ad-hoc) basis and are in the first instance up to 28-2-1972. They may be terminated earlier on the recommendation of the S. S. S. Board joining or otherwise without any notice and without assigning any reason.
2. These appointments will not confer any claim for regularisation of their appointment on the posts of Sub-Inspector, Food and Supplies or on any other post in the Department or for fixation of age/qualification for the purpose of regular appointment under the Government."
(3.)THE learned counsel has also referred to Rule 11 of the Haryana Food and Supplies Department Sub-Offices (Group C) Service Rules, 1982 which lays down that seniority inter se of the members of the service shall be determined by the length of continuous service on any post in the service. As regards the decision in Des Raj's case (supra) on which reliance has been placed by the High Court, the learned counsel has submitted that the said decision has been considered by a full Bench of the said High Court in Chambel Singh v. State of Haryana, etc. in Civil Writ Petition No. 5592 of 1989 decided on 23/09/1994 whereby the said judgment as well as the judgment of the Division Bench in Des Raj v. State of Haryana (Civil Writ Petition No. 8063 of 1991 decided on 24/09/1991 ) which arose out of the direction given in the earlier judgment in Des Raj's case (supra) have been overruled.
The learned counsel for the respondent has submitted that there was no break in the service of the respondent during the period from 15/10/197 1/11/1971 since the respondent had filed a Writ Petition (Civil Writ Petition No. 4201 of 1971) in the High Court Challenging the validity of the order dated 15/10/1971 regarding his termination and in that Writ Petition a stay order had been passed for continuing the respondent in service. The judgment of the High Court dated 24/01/1980, in the said Writ Petition (Civil Writ Petition No. 4201 of 1971) is on record. The said judgment shows that in the return filed on behalf of the respondents in that case it was stated that the respondent had been re-employed and the Writ Petition filed on his behalf stands rendered infructuous. Accepting the said statement in the written statement the Writ Petition in so far as respondent was concerned was dismissed. It would thus appear that the order of termination dated 15/10/1971 was not set aside by the High Court and the High Court did not go into the validity of the said order in view of the re-employment of the respondent. It cannot, therefore, be said that there was no break in the service of the respondent during the period from 15/10/197 1/11/1971. Moreover, the earlier service of the respondent up to his regular appointment on the basis of selection by the Subordinate Service Selection Board on 27/06/1972 was ad-hoc in nature. This is clearly indicated in the order of appointment dated 26/10/1971. Having regard to the decisions of this Court and more specially the decision of the Constitution Bench of this Court in Direct Recruit Class-II Engineers Officers Association v. State of Maharashtra AIR 1990 SC 1607, the respondent cannot be given the benefit of the said ad-hoc service rendered by him prior to 27/06/1972 for the purpose of seniority. We are unable to agree with the submission of the learned counsel for the respondent that the case of the respondent falls in conclusion "B" of the said judgment. In our opinion, the case of the respondent is clearly covered by the corollary to conclusion "A" of the said judgment. That is also the view taken by the Full Bench of the High Court of Punjab and Haryana in Chambal Singh's case (supra). The High Court was in error in giving the benefit of ad hoc service to the respondent in the matter of fixation of seniority and the said judgment cannot be upheld. In the matter of fixation of pay also the High Court was in error in extending the benefit in respect if the service prior to 15/11/1971. We are of the view that the trial Court and the appellate Court had rightly confined the said benefit of the period of continuous service from 15/11/1971 in the matter of fixation of pay. The appeal is, therefore, allowed, the order dated 10/12/1993 dismissing the review petition is set aside and the review petition filed by the appellant for the review of judgment of the High Court dated 1/02/1993 is allowed and the said judgment of the HighCourt is set aside and the judgments and decrees of the Courts below are restored . No costs.Appeal allowed.
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