AVNISH TYAGI Vs. CHIEF ADMINISTRATOR HUDA AND ANOTHER

JUDGEMENT

(1.) The short controversy in the writ petition relates to seniority by counting ad hoc service on regularization. The petitioner was appointed as Junior Engineer in the HUDA vide appointment letter dated 21.6.1994 (Annexure P-1) in the pay scale of Rs. 1640-60-2300-EB-75/2900. The petitioner continued to serve on ad hoc basis till regularization vide order dated 22.6.2004. A tentative seniority list of JE (Horticulture) in HUDA was issued vide memo dated 3.12.2008. It is alleged that seniority was fixed by adopting pick and choose policy. In similar cases, period of ad hoc service was counted towards seniority whereas the petitioner was denied benefit of ad hoc service towards determining seniority. The petitioner filed objections to the tentative seniority list and prayed for grant of seniority from the date of his initial ad hoc appointment. The claim of the petitioner is that his name should have been shown at Sr. No. 13 whereas in the tenative seniority list, his name has been shown at Sr. No. 27. Representation of the petitioner was not decided by the respondents. It is also the case of the petitioner that on the basis of the tenative seniority list, 5 J.Es were given current duty charge as S.D.E. (Horticulture) at various Sub Divisions in HUDA Department. It is also alleged that one Jagbir Singh, JE and one Vinay Kumar have been granted current duty charge by counting their ad hoc service while similar treatment has been denied to the petitioner. It is also the case of the petitioner that without considering his objection to the tenative seniority list, a final seniority has been issued vide Circular dated 7.4.2010 and even before that current duty charge was given to some junior engineers who are said to be junior to the petitioner. The petitioner filed CWP No. 7204 of 2010 which came to be disposed of vide order dated 23.4.2010 directing the respondents to decide the representation of the petitioner. Pursuant to the aforesaid direction, representation filed by the petitioner has been decided vide order dated 14.7.2010 (Annexure P-7). It is this order which is impugned in the present writ petition. The petitioner has not only sought quashment of the aforesaid order, but has sought further direction for fixation of his seniority over and above various J.Es. by counting his ad hoc service.

(2.) I have heard learned counsel for the petitioner and perused the impugned order. It is stated in the impugned order that the petitioner's initial appointment was on purely ad hoc basis for 89 days which was extended from time to time. It is further mentioned that his appointment on regular basis was a fresh appointment and thus, he is not entitled to any seniority, in view of the Haryana Government instructions/notification dated 1.10.2003.

(3.) The petitioner has relied upon a judgment of this Court in case of Hanumant Singh and others v. State of Haryana others, 2008 4 SCT 427 wherein it has been held that ad hoc appointment made by following due procedure of law and subsequent regularisation will entitle the person to count the ad hoc service towards seniority. This judgment has no application to the case of the petitioner. There is not even a whisper in the writ petition that petitioner's initial appointment was by adopting due procedure of law, i.e. inviting applications etc. in consonance with the mandate of Articles 14 and 16 of the Constitution of India. Even the appointment order (Annexure P-1) does not indicate that the initial appointment on ad hoc basis was by adopting due procedure of law. In case of Hanumant Singh and others , seniority was granted only keeping in view the fact that the initial appointment was by adopting the procedure of law. This petition is liable to be dismissed on two grounds firstly, initial appointment of the petitioner on ad hoc basis was without adopting any valid procedure of law and without complying with mandate of Articles 14 and 16 of the Constitution of India. This issue is no more res integra and has been settled by a Constitutional Bench judgment of Hon'ble Supreme Court in the case of The Direct Recruit Class-II Engineering Officers Association and others v. State of Maharashtra and others, 1990 AIR(SC) 1607 and a Full Bench of this Court in case of Chambel Singh v. State of Haryana, 1994 4 SCT 800. In the case of Direct Recruit Class II Engineering Officers' Association , the Hon'ble Supreme Court has held as under :-