RAJINDER KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) The writ petition contains a prayer for issue of writ of mandamus to count the service of the petitioner from the date when he joined the department on ad hoc basis and grant to him other consequential benefits. After the institution of the writ petition, he has been superannuated from service and therefore, the learned counsel appearing for the petitioner contends that the writ petition will still have relevance for consideration of the monetary benefits and pension.

(2.) The petitioner had been appointed as a Clerk on ad hoc basis in the office of the Labour Commissioner, Haryana by appointment letter dated 19.01.1968. It appears that during his tenure of services on temporary post, there was a fresh notification for appointment to the post of Typist through the Haryana Public Service Commission. The petitioner had applied for the same post and having been selected he was assigned to the very same department of Labour Commissioner to the post of Typist. The contention of the learned counsel is that his entry into service must be counted from the time when he was originally appointed on 19.01.1968 on a temporary post. The learned counsel would rely on a decision of Division Bench of this Hon'ble Court in 2008(4) S.C.T. 427 : C.W.P. No. 7862 of 2006 dated 04.07.2008 in Hanumant Singh and others v. State of Haryana and others that held that an ad hoc service followed by regular service shall be counted for the purpose of higher pay scale and the benefit of Assured Career Progression Scheme on completion of 8/18 or 10/20 years of service. The said judgment had been rendered in the context of a person, who had joined the service as Diesel Pump Attendant on temporary ad hoc basis and later in the course of his service, he was made permanent. The issue arose with reference to the application of ACP Scheme and grant of higher pay scale for persons, who had completed certain number of years of service. The Division Bench held in that case that number of years of service in such a case where a person had been appointed on ad hoc basis and regularized in the same post was entitled to count the ad hoc service also for the purpose of the higher scales of pay. In my view, the reference to this judgment is misplaced, for the petitioner in this case was not regularized in the post where he was appointed in a temporary post. On the other hand, he had responded to a fresh advertisement notification and obtained a fresh appointment. The service on temporary basis cannot, under the circumstances, be reckoned and it is immaterial that he had applied for the post as a Typist through proper channel by informing his employer about his seeking fresh employment in response to an advertisement.

(3.) Learned counsel appearing for the petitioner would urge as a general proposition that ad hoc appointment will have always to be counted for the purpose of seniority and for terminal benefits except when; one, there is a break in service and; two, the initial appointment in ad hoc service itself is illegal. These two situations definitely do not warrant the counting of ad hoc service but even ad hoc or temporary service which did not fructify into regular service and which was independent of the initial ad hoc service cannot count for seniority or for any other benefits. If the fresh engagement had come about through a fresh recruitment process, the initial engagement and his services on temporary basis cannot be tacked on to the regular service, unless there are any specific rules which provide for counting of such service also for the purpose of seniority and other benefits. It has not been shown before me that any such rules exist. On the other hand, the learned counsel appearing for the State, Mr. Nalwa refers me to the decision of a Division Bench of this Court in State of Haryana and another v. Kiran Vashisht and others in LPA No. 973 of 1990 rendered on 12.02.1993 where a person, who had been appointed in the very same department namely the Labour Commissioner on a temporary basis sought for counting of the period of his temporary service for the purpose of seniority. Relying upon the instructions of the Department of March 29, 1957, the Division Bench held that the seniority had to be fixed with reference to the date as a regular appointee and inter se merit as determined by the selection board and there is generally no rule of law that a service in the ad hoc post would always count for the purpose of seniority.