BALBIR CHAND Vs. STATE OF PUNJAB AND ANOTHER

JUDGEMENT

(1.) The petitioner was discharged from the Army on 28th June, 1970 and was appointed to civil service as Clerk on 13th December, 1973. He served during the first emergency and part of the second. It may be noticed that the respondent Department sent a requisition to the Subordinate Service Selection Board, Punjab (for short "the Board") for filling up 6 vacancies of Clerks meant for Exservicemen which were advertised in the Department of Cooperative Societies, Punjab. The Board did not find any suitable candidate in the category to recommend to Government. In this situation, the Chief Auditor, Cooperative Department, Punjab resorted to the method of calling names from the Employment Exchange for filling up the posts of Clerk lying vacant in the Department. It was in these circumstances that the petitioner responded to the employment notice on his name being sponsored by the Employment Exchange and he succeeded in getting appointment on merit. Having secured appointment to civil service the petitioner has been denied benefit of seniority which is governed by Rule 5 of the Demobilsed Armed Forces Personnel (Reservation of Vacancies) in the Punjab State Non-Technical Service Rules, 1968 (for short "the Rule") and his seniority ought to be fixed under Rule 5 (1) of the Rules. Since the petitioner was appointed against a vacancy reserved under Rule 3 of the Rules, therefore, his seniority has to be given to him on the assumption that he joined the service under the State Government at the first opportunity he had after he joined military service or training prior to the selection. The subsequent act of regularization of such services would not deprive the petitioner of the rights he possessed under Rule 5 of the Rules and his seniority accordingly was required to be fixed from the date he was appointed to service [though called ad hoc in the written statement filed by the State].

(2.) The first impugned order rejects the case of the petitioner on the ground that ad hoc service cannot be counted towards seniority. The respondents have wrongly treated the case of the petitioner as of ad hoc service. The principle is long established that ordinarily ad hoc service will not be counted towards seniority in view of number of binding judgments on the point. The Full Bench of this Court can be read in Chambel Singh v. State of Haryana, 1995 109 PunLR 152 and the Supreme Court in State of Haryana vs Haryana Veterinary & A.H.T.S., 2000 8 SCC 4. However, those principles would not apply to ex servicemen under the 1968 Rules since it is a misnomer to label the service of the petitioner as "ad hoc" to deprive Ex-serviceman of the right to seniority based on deeming fiction of first opportunity in accordance with rules.

(3.) It is also not a case of claim for regularization from the date of ad hoc service. A reading of the appointment order dated 11th December, 1973 (Annex.P-3); where the name of the petitioner falls at Sr.No.4, nails the lie in the written statement. The appointment letter dated 11th December, 1973 does not use the word "ad hoc" at all. Still further, the requisition sent to the Employment Exchange (Annex.P-1) for filling up 6 posts of Clerks in the Office of the Chief Auditor, Cooperative Societies, Punjab, Chandigarh, reveals that the vacancy is described as "regular" with the words "yes" written in column No.6. Neither was an ad hoc post advertised nor was one filled on ad hoc basis as is clear from the reading of Annex. P-1 and P-2. In view of the above discussion, it appears to this Court that the impugned orders have been passed under mistake of law and the principles attached to the Rules have not been applied.