Punjab-Haryana High Court
Wazir Singh vs State Of Haryana And Others on 18 December, 2024
Neutral Citation No:=2024:PHHC:170845
1
CWP-17178
17178 of 2018 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-17178
17178 of 2018 (O&M)
Date of decision
decision: 18.12.2024
Wazir Singh SDE (Retd)
......Petitioner
Versus
State of Haryana and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: - Mr. S.S. Shekhawat, Advocate,
for the petitioner.
Mr. P.C. Goyal, Addl. A.G., Haryana.
NAMIT KUMAR, J.
CM-1106-CWP
CWP of 2023
1. This application has been filed by the applicant
applicant-petitioner
for placing on record the copy of promotion order of the petitioner
dated 27.11.1998 to the post of Sub Divisional Engineer as Annexure
P-7.
2. For the reasons mentioned in the application, same is
allowed. Copy of order dated 27.11.1998 is taken on record subject to
all just exceptions.
CWP-17178
17178 of 2018
1. The petitioner has filed the instant writ petition under
Articles 226/227 of the Constitution of India seeking quashing of order
dated 22.05.2015 (Annexure P-4),
4), passed by respondent No.2 whereby
the claim of the petitioner for counting of the ad hoc servi
service rendered
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by him as Sub Divisional Engineer for the grant of time scale, seniority
and other consequential benefits has been rejected. Further, a writ of
mandamus has been sought to direct the respondents to decide afresh
the claim of the petitioner and to count the ad hoc service rendered by
him as Sub Divisional Engineer for the grant of time scale, seniority
and other consequential benefits.
2. The brief facts, as have been pleaded in the petition, are
that the petitioner joined the respondent-depart
respondent department as Junior Engineer
in the year 1970 and thereafter vide order dated 27.11.1998
27.11.1998, he was
promoted as Sub Divisional Engineer on stop
stop-gap arrangement for a
period of six months, subject to the approval of the Haryana Public
Service Commission. The said ad hoc promotion was treated as regular
w.e.f. 01.01.2005 and thereafter the petitio
petitioner retired from service on
attaining the age of superannuation on 30.11.2006 as SDE (Civil).
After eight years of his retirement, petitioner submitted representations
dated 13.11.2014,
13.11.201 18.01.2015 followed by legal notice dated
23.02.2015 and representation
representation dated 07.11.2016, claiming counting of
his ad hoc service from 01.12.1998 to 31.12.2004 for all benefits such
as next scale after five years of service and other retirement benefits
and seniority. The said claim was considered and rejected by the
respondents
ndents, vide order dated 22.05.2015
.05.2015 (Annexure P
P-4), which has
been impugned in the present petition.
3. Written statement on behalf of the respondents has been
filed whereby claim of the petitioner has been opposed.
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4. Learned counsel for the petitioner has argued that the ad
hoc service rendered by the petitioner is liable to be counted for the
purpose of grant of time scale and seniority in view of the law laid
down by this Court in CWP No.8604 of 2007 – Dr. Surinder Kumar
Mishra and others v. State of Haryana and others – decided on
09.09.2010,, which has been upheld in LPA No.886 of 2011 – State of
Haryana and others v. Surinder
Surinder Kumar Mishra and others – decided
on 13.10.2011.
13.10.2011
5. Per contra, learned State counsel has argued that present
petition is liable
liable to be dismissed on the ground of delay and laches. He
further submitted that even on merits also, the ad hoc service rendered
by the petitioner cannot be counted for the purpose of grant of time
scale and seniority.
6. I have heard learned counsel for the parties and perused
the record.
7. The issues which arise in the present petition are as to
whether the instant petition filed by the petitioner
petitioner, after a considerable
delay, is liable to be dismissed on account of delay and laches and
whether the ad hoc service rendered by the petitioner from 01.12.1998
to 31.12.2004 can be counted for the grant of time scale and seniority
seniority.
8. The facts are not in dispute that the petitioner joined the
service as Junior Engineer in the year 19700 and was promoted as Sub
Divisional Engineer on stop-gap
stop gap arrangement
arrangement, vide order dated
27.11.1998,, and the said ad hoc arrangement
arrangement, was made regular w.e.f.
01.01.2005
5 and the petitioner retired from service on attaining the age
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of superannuation on 30.11.2006 and submitted representation for the
first time on 13.11.2014 i.e. after eight years of his retirement.
9. Admittedly, there is gross, inordinate and unexplained
delay of twelve years in filing the present writ petition for redressal of
his grievance.
grievance
10. The Hon’ble Supreme Court in “Yunus (Baboobhai) A
Hamid Padvekar vs State of Maharashtra Through its Secretary and
others”,, 2009(2) SCT 24,
24, while referring to the issue of delay and
latches, had held as follows:-
follows:
“8.
8. Delay or laches is one of the factors which is to
be borne in mind by the High Courts when they exercise
their discretionary powers under Article 226 of the
Constitution of India, 1950 (in short the ‘Constitution’). In
an appropriate case the High Court may refuse to invoke
its extraordinary powers if there is such negligence or
omission on the part of the applicant to assert his right as
taken in conjunction with the lapse of time and other
circumstances, causes prejudice to the opposite party.
Even where
re fundamental right is involved the matter is still
within the discretion of the Court as pointed out in Durga
Prasad v. Chief Controller of Imports and Exports (AIR
1970 SC 769).. Of course, the discretion has to be
exercised judicially and reasonably.
9.. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Company v. Prosper
Armstrong Hurde etc. (1874) 5 PC 221 at page 239 was
approved by this Court in Moon Mills Ltd. v. Industrial
Courts (AIR 1967 SC 1450) and Maharashtra State
Transport
sport Corporation v. Balwant Regular Motor Service
(AIR 1969 SC 329),, Sir Barnes had stated:
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17178 of 2018 (O&M)“Now the doctrine of laches in Courts of
Equity is not an arbitrary or technical doctrine.
Where it would be practically unjust to give a
remedy either because the party has, by his conduct
done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct
and neglect he has though perhaps not waiving that
remedy, yet put the other party in a situation in
which it would not be reaso
reasonable to place him if the
remedy were afterwards to be asserted, in either of
these cases, lapse of time and delay are most
material. But in every case, if an argument against
relief, which otherwise would be just, if founded
upon mere delay, that delay of course not amounting
to a bar by any statute of limitation, the validity of
that defence must be tried upon principles
substantially equitable. Two circumstances always
important in such cases are, the length of the delay
and the nature of the acts done dduring the interval
which might affect either party and cause a balance
of justice or injustice in taking the one course or the
other, so far as relates to the remedy.”
10. It would be appropriate to note certain decisions
of this Court in which this aspec
aspect has been dealt with in
relation with Article 32 of the Constitution. It is apparent
that what has been stated as regards that Article would
apply, a fortiori, to Article 226. It was observed in R.N
Bose v. Union of India (AIR 1970 SC 470) that no relief
can be given to the petitioner who without any reasonable
explanation approaches this Court under Article 32 after
inordinate delay. It was stated that though Article 32 is
itself a guaranteed right, it does not follow from this that it
was the intention off the Constitution makers that this
Court should disregard all principles and grant relief in
petitions filed after inordinate delay.
11. It was stated in State of M.P. v. Nandlal (AIR
1987 SC 251) that the High Court in exercise of its
discretion does nott ordinarily assist the tardy and the
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indolent or the acquiescent and the lethargic. If there is
inordinate delay on the part of the petitioner and such
delay is not satisfactorily explained, the High Court may
decline to intervene and grant relief in exer
exercise of its writ
jurisdiction. It was stated that this rule is premised on a
number of factors. The High Court does not ordinarily
permit a belated resort to the extraordinary remedy
because it is likely to cause confusion and public
inconvenience and bringg in its trail new injustices, and if
writ jurisdiction is exercised after unreasonable delay, it
may have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was
pointed out that when writ jurisdiction is iinvoked,
unexplained delay coupled with the creation of third party
rights in the meantime is an important factor which also
weighs with the High Court in deciding whether or not to
exercise such jurisdiction.
12. In view of the aforesaid position we are nnot
inclined to interfere in this appeal which is dismissed
accordingly.”
11. Further the Hon’ble Supreme Court in State of
Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and
others, 2013(6) SLR 629,
629, while considering the issue regarding delay
and
nd laches and referring to earlier judgments on the issue, opined that
repeated representations made will not keep the issues alive. A stale or
a dead issue/dispute cannot be revived even if such a representation has
been decided either by the authority or by getting a direction from the
court as the issue regarding delay and laches is to be decided with
reference to original cause of action and not with reference to any such
order passed. Delay and laches on the part of a government servant may
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deprive him of the benefit which had been given to others. Article 14 of
the Constitution of India, in a situation of that nature, will not be
attracted as it is well known that law leans in favour of those who are
alert and vigilant. Even equality has to be claimed at the right juncture
and not on expiry of reasonable time. Even if there is no period
prescribed for filing the writ petition under Article 226 of the
Constitution of India, yet it should be filed within a reasonable time. An
order promoting a junior should
should normally be challenged within a period
of six months or at the most in a year of such promotion. Though it is
not a strict rule, the courts can always interfere even subsequent thereto,
but relief to a person, who allows things to happen and then approa
approach
the court and puts forward a stale claim and try to unsettle settled
matters, can certainly be refused on account of delay and laches.
Anyone who sleeps over his rights is bound to suffer. An employee who
sleeps like Rip Van Winkle and got up from slumb
slumber at his own leisure,
deserves to be denied the relief on account of delay and laches.
Relevant paragraphs from the aforesaid judgment are extracted below:
“13. We have no trace of doubt that the respondents could
have challenged the ad hoc promotion conf
conferred on the
junior employee at the relevant time. They chose not to do
so for six years and the junior employee held the
promotional post for six years till regular promotion took
place. The submission of the learned counsel for the
respondents is that they
ey had given representations at the
relevant time but the same fell in deaf ears. It is interesting
to note that when the regular selection took place, they
accepted the position solely because the seniority was
maintained and, thereafter, they knocked at the doors of
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the tribunal only in 2003. It is clear as noon day that the
cause of action had arisen for assailing the order when the
junior employee was promoted on ad hoc basis on
15.11.1983. In C. Jacob v. Director of Geology and
Mining and another, (2008) 10 SCC 115
115, a two-Judge
Bench was dealing with the concept of representations and
the directions issued by the court or tribunal to consider
the representations and the challenge to the said rejection
thereafter. In that context, the court has expre
expressed thus:-
“Every representation to the Government for
relief, may not be replied on merits. Representations
relating to matters which have become stale or
barred by limitation, can be rejected on that ground
alone, without examining the merits of the cl
claim. In
regard to representations unrelated to the
Department, the reply may be only to inform that the
matter did not concern the Department or to inform
the appropriate Department. Representations with
incomplete particulars may be replied by seeking
relevant
evant particulars. The replies to such
representations, cannot furnish a fresh cause of
action or revive a stale or dead claim.”
14. XXXX XXXX XXXX XXXX
15. XXXX XXXX XXXX XXXX
16. XXXX XXXX XXXX XXXX
17. In Bharat Sanchar Nigam Limited v. Ghan
Ghanshyam
Dass (2) and others, (2011) 4 SCC 374
374, a three-Judge
Bench of the Hon’ble Supreme Court reiterated the
principle stated in Jagdish Lal v. State of Haryana, (1997)
6 SCC 538 and proceeded to observe that as the
respondents therein preferred to sleep oover their rights and
approached the tribunal in 1997, they would not get the
benefit of the order dated 7.7.1992.
18. In State of T. N. vs. Seshachalam, (2007) 10 SCC
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137,, the Hon’ble Supreme Court, testing the equality
clause on the bedrock of delay and llaches pertaining to
grant of service benefit, has ruled thus:
thus:-
“… filing of representations alone would not
save the period of limitation. Delay or laches is a
relevant factor for a court of law to determine the
question as to whether the claim made by an
applicant deserves consideration. Delay and/or
laches on the part of a government servant may
deprive him of the benefit which had been given to
others. Article 14 of the Constitution of India would
not, in a situation of that nature, be attracted as it is
well known that law leans in favour of those who
are alert and vigilant.”
19. XXXX XXXX XXXX XXXX
20. In New Delhi Municipal Council v. Pan Singh and
others, (2007) 9 SCC 278,, the Hon’ble Supreme Court has
opined that though there is no period of llimitation
provided for filing a writ petition under Article 226 of the
Constitution of India, yet ordinarily a writ petition should
be filed within a reasonable time. In the said case the
respondents had filed the writ petition after seventeen
years and thee court, as stated earlier, took note of the
delay and laches as relevant factors and set aside the
order passed by the High Court which had exercised the
discretionary jurisdiction.
12. In a recent judgment by the Division Bench of this Court
in “Ram Kumar
Kumar vs State of Haryana and others“, 2022 (3) SCT 346,
while rejecting the claim of the petitioner for counting of his ad hoc
service, for the purpose of seniority/pension and regularization in
service on completion of 02 years as per policy, held that the petition
filed by him suffered from gross, inordinate and unexplained delay in
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approaching the High Court. In the said judgment, it has been held as
under:-
“10. What we wish to emphasize, in particular, is that
services of the appellant were regularized w
w.e.f.
01.04.1997. And, he was assigned a specific seniority
position in the cadre. Whereafter, he continued to serve the
department for nearly twenty five years, before attaining
the age of superannuation in January, 2022. Needless to
assert that during alll these years, he availed all admissible
benefits, promotions, and retired as Inspector. Thus, it
rather appears that institution of the petition by the
appellant was speculative and an attempt to resurrect a
stale and dead claim. The Supreme Court, in New Delhi
Municipal Council v. Pan Singh & Ors., 2007(9) SCC
278, observed:
“15. There is another aspect of the matter
which cannot be lost sight of. Respondents herein
filed a Writ Petition after 17 years. They did not
agitate their grievances for a long ti
time. They, as
noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the
reference made by the State before the Industrial
Tribunal. It is not their case that after 11982, those
employees who were employed or who were
recruited after the cut-off
off date have been granted
the said scale of pay. After such a long time,
therefore, the Writ Petitions could not have been
entertained even if they are similarly situated. It is
trite
ite that the discretionary jurisdiction may not be
exercised in favour of those who approach the Court
after a long time. Delay and laches are relevant
factors for exercise of equitable jurisdiction. See10 of 29
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CWP-17178
17178 of 2018 (O&M)Govt. of W.B. v. Tarun K. Roy And Others [(2004)
1 SCC
CC 347], Chairman, U.P. Jal Nigam & Anr. v.
Jaswant Singh And Anr. [2006 (12) SCALE 347]
and Karnataka Power Corpn. Ltd. through its
Chairman & Managing Director and Another v. K.
Thangappan and Another [(2006) 4 SCC 322]
322]”
11. Similarly, in Jagdish Lal & O
Ors. v. State of
Haryana & Ors., (1997) 6 SCC 538
538, it was held by the
Supreme Court:
“That apart, as this Court has repeatedly
held, the delay disentitles the party to the
discretionary relief under Article 226 or 32 of the
Constitution. It is not necessar
necessary to reiterate all
catena of precedents in this behalf. Suffice it to state
that the appellant kept sleeping over their rights for
long and elected to wake up when they had the
impetus from Vir Pal Chauhan and Ajit Singh’s
ratios………………… Therefore
Therefore, desperate attempts of
the appellants to re-do
do the seniority had by them in
various cadres/grades though in the same services
according to 1974 Rules or 1980 Rule, are not
amenable to judicial review at this belated stage….”
12. In the wake of the position as sketched out above,
we are dissuaded to interfere with the impugned order and
judgment rendered by the learned single Judge. The
appeal being bereft of merit is, accordingly, dismissed.”
13. The Co-ordinate
ordinate Bench of this Court in “Prem Nath and
others vs State of Punjab and others“, 2018(2) SCT 687, while
rejecting the claim of additional increments of acquisition of higher
qualifications has held as under:-
under:
“3. It is the case set up on behalf of the petitioners
that they had all been appointe
appointed before 19.02.1979 and11 of 29
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17178 of 2018 (O&M)had even improved/acquired higher qualifications before
19.02.1979 and as such there would be no difference
between the employees working with the Punjab
Government, holding corresponding post and the
employees like the petitioners who have worked for
Punjab Privately Managed Recognised Aided Schools. It is
also the assertion made by counsel representing the
petitioners that their claim would be covered in terms of
decision dated 02.07.2013 rendered by this Court in a
bunch of writ petitions
etitions including CWP No.8083 of 1989
titled as Radha Krishan Narang and others vs. State of
Punjab and others.
4. Having heard counsel for the petitioners at length,
this Court is of the considered view that the claim of the
petitioners would not requiree any consideration on merits
and the writ petition deserves to be dismissed on the sole
ground of delay and laches.
5. Placed on record and appended at Annexure P
P-1
are the particulars of the petitioners. The tabulation at
Annexure P-11 would show that all the petitioners stand
retired on various dates between the years 1995 to 2012.
Out of 32 petitioners in all, 22 petitioners superannuated
more than 10 years back.
6. There is no justification coming forth as regards
the inordinate delay in having appr
approached the Writ Court.
There is also no explanation put forth by the petitioners as
to why the claim raised in the instant petition was not
agitated by the petitioners while they were in service. The
entire thrust of the submissions advanced by counsel is
that similarly situated employees had approached this
Court and have been granted relief.
7. The issue regarding delay in invoking the
extraordinary writ jurisdiction under Article 226 of the
Constitution of India was considered by the Hon’ble12 of 29
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17178 of 2018 (O&M)Supreme Court in Chairman, U.P. Jal Nigam and another
v. Jaswant Singh and another (2006)11 SCC 464
464. In such
case, certain employees raised the issue that they were not
liable to be retired at the age of 58 years but should be
permitted to continue in service till th
they attain the age of
60 years. Such employees were still in service when the
writ petitions were filed. The writ petitions were ultimately
allowed. Placing reliance upon such judgment, some of the
employees, who had already superannuated, filed writ
petitions
ons seeking the same benefit. Even such petitions
were allowed by the High Court in terms of following the
earlier judgment. The judgment of the High Court was
challenged before the Apex Court and wherein while
referring to earlier judgments in Rup Diamonds v. Union
of India, (1989)2 SCC 356; “Jagdish Lal v. State of
Haryana, (1997)6 SCC 538 and Government of West
Bengal v. Tarun K. Roy, (2004)1 SCC 347
347, it was opined
that persons who approached the Court at a belated stage
placing reliance upon the order ppassed in some other case
earlier, can be denied the discretionary relief on the
ground of delay and laches. The relevant observations
made by the Supreme Court are contained in Paras 5, 6
and 16 of the judgment and are extracted here under:
under:-
“5. So far as the principal issue is
concerned, that has been settled by this court.
Therefore, there is no quarrel over the legal
proposition. But the only question is grant of
relief to such other persons who were not
vigilant and did not wake up to challenge
their retirement
etirement and accepted the same but
filed writ petitions after the judgment of this
court in Harwindra Kumar v. Chief
Engineer, Karmik, (2005) 13 SCC 300 300.
Whether they are entitled to same relief or not?
Therefore, a serious question that arises for
consideration
eration is whether the employees who
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17178 of 2018 (O&M)and accepted the same, collected their post post-
retirement benefits, can such persons be given
the relief in the light of the subsequent
decision delivered by this court?
6. Thee question of delay and laches has
been examined by this court in a series of
decisions and laches and delay has been
considered to be an important factor in
exercise of the discretionary relief under
Article 226 of the Constitution. When a
person who is not ot vigilant of his rights and
acquiesces with the situation, can his writ
petition be heard after a couple of years on
the ground that same relief should be granted
to him as was granted to person similarly
situated who was vigilant about his rights and
challenged
allenged his retirement which was said to
be made on attaining the age of 58 years. A
chart has been supplied to us in which it has
been pointed out that about 9 writ petitions
were filed by the employees of the Nigam
before their retirement wherein their
retirement was somewhere between 30.6.2005
and 31.7.2005. Two writ petitions were filed
wherein no relief of interim order was passed.
They were granted interim order. Thereafter a
spate of writ petitions followed in which
employees who retired in the year years 2001,
2002, 2003, 2004 and 2005, woke up to file
writ petitions in 2005 and 2006 much after
their retirement. Whether such persons should
be granted the same relief or not?
xx xx xx
16. Therefore, in case at this belated stage if
similar relief is to be given to the persons who
have not approached the court that will
unnecessarily overburden the Nigam and the
Nigam will completely collapse with the
liability of payment to these persons in terms
of two years’ salary and increased benefit of
pension and other her consequential benefits.
Therefore, we are not inclined to grant any
relief to the persons who have approached the
court after their retirement. Only those
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persons who have filed the writ petitions
when they were in service or who have
obtained interim order for their retirement,
those persons should be allowed to stand to
benefit and not others.”
[Emphasis supplied]
8. The issue of delay was also dealt with by this
Court in Tarsem Pal vs. Punjab State Power Corporation
Limited and others, 2013 (3) SLR 314. In the case of
Tarsem Pal (supra), the petitioner was serving as a Clerk
with the respondent-Corporation
Corporation and had retired on
31.03.2005. Claim in the writ petition was to grant to him
the benefit of proficiency set up in the pay scale on
completion of 23 years of service from the due date as per
policy of the Corporation. During the service career, he
had not agitated the claim for increments. For the first
time, such claim had been made on 28.02.2005 i.e. just
one month prior to superannuation. While nnon-suiting the
petitioner on account of delay and laches it was held as
follows:-
“11. In the aforesaid judgments, it has
been clearly laid down that discretionary
relief in a writ jurisdiction is available to a
party who is alive of his rights and enforc
enforces
the same in court within reasonable time. The
judgment in another case does not give a
cause of action to file a writ petition at a
belated stage seeking the same relief. Such
petitions can be dismissed on account of
delay and laches. As has already bee
been noticed
above in the present case as well, the
petitioner joined service in the year 1965 and
retired in the year 2005, but raised the issue
regarding benefit of proficiency step up in the
pay scale on completion of 23 years of service
from the due date more than five years after
his retirement referring to a judgment of this
court and filed the petition claiming the same
relief.
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12. The petitioner retired from service
on 31.3.2005 and the claim pertaining to the
benefit of proficiency step up, which may be
admissible to the petitioner during his service
career, was sought to be raised more than five
years after his retirement, the claim made at
such a late stage deserves to be dismissed on
account of delay and laches only. The
petitioner could raise a gr
grievance about the
pay scales admissible to him or the last pay
drawn by him within a reasonable time after
his retirement. He cannot be permitted to
raise the same at any time on the plea that the
same is recurring cause of action.
13. Considering the enu
enunciation of law,
as referred to above, in my opinion, the
petitioner herein is not entitled to the relief
prayed for and the petition deserves to be
dismissed merely on account of delay and
laches.”
9. At this stage, counsel appearing for the
petitioners would make an attempt to overcome the
obstacle of delay by placing reliance upon a Full Bench
Judgment of this Court in Saroj Kumar vs. State of
Punjab, 1998(3) SCT 664.. Counsel would argue that as
per dictum laid down in Saroj Kumar‘s case(supra),
matters of pay fixation involve a recurring cause of action
and as such, writ petitions for such claim cannot be
dismissed on the ground of delay and laches and the Court
at the most, may restrict the arrears upto 38 months from
the date of filing of the petition and disallow the arrears
for the period for which even a suit had become time
barred.
10. The reliance placed by counsel upon the
judgment in Saroj Kumar‘s case, is wholly misplaced. The
observations and aspect of delay in Saroj Kumar‘s case,
were in the light of the judgment of the Supreme Court in
M.R. Gupta vs. Union of India and others, 1995(4) RSJ
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502.. In M.R. Gupta‘s case(supra), it had been
categorically held that so long as an employee “is in
service” a fresh cause of action arises every month whe
when
he is getting his monthly salary on the basis of a wrong
calculation made contrary to rules. It was further held that
the claim to be awarded the correct salary on the basis of
a proper pay fixation “is a right which subsists during the
entire tenure of service”.
11. In the present case, however the petitioners
choose not to agitate their claim while in service. It is
much subsequent to their superannuation that they have
woken up and seek to gain impetus from certain
decisions that may have been rendere
rendered in the case of
similarly situated employees.
12. Considering the dictum of law as laid down in
Chariman, U.P. Jal Nigam‘s case (supra), the petitioners
herein are not entitled to any releif as prayed for and the
petition deserves to be dismissed on the sole ground of
delay and laches.
13. Ordered accordingly.”
14. The Division Bench of this Court in
in”H.S. Gill vs Union of
India and others“, 2016(2) SCT 477,, has held that an employee cannot
claim the revised pay scale after retirement once he has been receiving
the pay scale granted by the employer for the last 09 years. The
relevant portion from the said judgment, reads as under:
under:-
“14. The petitioner is also not entitled to any relief
on account of principle of delay and laches. He has been
receiving the pay in the pay scale of Rs.6500
Rs.6500-10500 right
from his transfer to CSIO, Chandigarh i.e. 2.7.2002. For
the first time, he moved the representation on 29.8.2011,
so, he kept mum for about 9 years. Thus, the claim of the
petitioner is highly belated and st
stale.”
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15. The second issue as to whether ad hoc service is countable
for the grant of time scale and seniority is not res integra as this Court
in CWP No.28652
No. of 2019 – R.D. Sharma and others v. State of
Haryana and others and connected cases decided on 17.12.2024 has
held as under: –
“8. The only issue in the present petition is as to
whether the ad hoc service rendered by the petitioners can
be counted for grant of ACP benefit.
9. Before proceeding further, it would be
relevant to give reference to the ACP Scheme which has
been promulgated by the State Government in exercise of
powers conferred by the proviso to Article 309 of the
Constitution of India by making the Rules known as “the
Haryana Civil Services (Revised Pay) Rules, 1998” (for
short ‘the Rules’). Rule 5 of the Rules deals with the
eligibility for grant of ACP scales and provides that every
Government servant, after a regular satisfactory service
for a minimum period of 10 and 20 years, is eligible for
grant of first and second ACP scale. Rule 5 of the Rules
reads as under: –
“5. Eligibility for Grant of ACP Scales
Scales-
(1) Every Government servant who after a
regular satisfactorily service for a minimum
period of 10 years, if the minimum period is
not otherwise prescribed to be different tha
than
10 years either in these rules or by the
Government for any class or categories of
Government servant from time to time has not
got any financial upgradation in terms of
grant of a pay scale higher than the
functional pay scale prescribed for the post18 of 29
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as a direct recruited fresh entrant:
entrant:-
a) either as a consequence of his functional
promotion in the hierarchy, or
b) as a consequence of the revision of pay scale
for the same post, or
c) as a consequence of any oother event through
which the functional pay scale of the post has
been upgraded, with respect to the functional
pay scale prescribed for the post as on
31.12.1995,
shall for the purposes of draw
drawal of pay, be
eligible for placement into the first ACP scale
with reference to him.
(2) Every Government servant who after a
regular satisfactorily service for a minimum
period of 20 years, if the minimum period is
not otherwise prescribed to be different than
20 years either in these rules or by the
Government forr any class or categories of
Government servant from time to time has not
got more than one financial upgradation in
terms of grant of a pay scale higher than the
functional pay scale prescribed for the post
as on 31.12.1995, on which he was recruited
as a direct recruited fresh entrant:
entrant:-
a) either as a consequence of his functional
promotion in the hierarchy, or
b) as a consequence of the revision of pay
scale for the same post, or
c) as a consequence of any other event
through which the functional pay scale
of the post has been upgraded, with
respect to the functional pay scale19 of 29
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31.12.1995
shall for the purposes of draw
drawal of pay, be
eligible for placement into the second ACP
scale with reference to him.
Provided that grant of ACP scale shall also
be considered financial upgradation for the
purpose of this rule
Note: For the purpose of these rules, “Regular
satisfactorily service”
service”would mean continuous
service
ice counting towards seniority under
Haryana Government including continuous
service in Punjab Government before
reorganization commencing from the date on
which the Government servant joined his
service after being recruited through the
prescribed procedu
procedure or rules etc. for regular
recruitment in the cadre in which he is
working at the time of being considered his
eligibility for grant of ACP scales under these
rules and after further fulfilling all the
requirements prescribed for determining the
suitability
ity of grant of ACP scales.
scales.”
A careful reading of the provisions of Rule 5
shows that for grant of ACP scale a specified length of
regular satisfactory service is mandatory. The expression
given in the said Rule is the minimum requirement of
“regular satisfactory service” for the pur
purpose of grant of
ACP scale.
10. The issue in hand is not res integra as it has
already been settled by the Hon’ble Supreme Court in the
case of Haryana Veterinary and A.H.T.S. Association
(supra) wherein a Full Bench judgment of this Court in
Rakesh Kumar Singla’s case (majority view) has been
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overruled by holding that only the regular service can be
counted for the purpose of grant of selection grade. The
said judgment has been followed by the Hon’ble Supreme
Court in Jagjiwan Ram‘s case (supra), wh
wherein after
considering various judgments
judgments, it has been held as under:-
“10. The ratio of the above mentioned judgments is
that work charged employees constitute a distinct
class and they cannot be equated with any other
category or class of employees much less regular
employees and further that the work charged
employees are not entitled to the service benefits
which are admissible to regular employees under
the relevant rules or policy framed by the employer.
11. What to say of work charged employees even
those appointed on ad hoc basis cannot claim parity
with regular employees in the matter of pay fixation,
grant of higher scales of pay, promotion etc. In
State of Haryana v. Haryana Veterinary & AHTS
Association and another (supra), a three
three-Judge
Bench considered
onsidered the question whether service of an
employee appointed on adhoc basis can be equated
with that of regular employee for the purpose of
grant of selection grade in terms of the policy
contained in circulars dated 2nd June, 1989 and
16th May, 1990 issued
sued by the Government of
Haryana and answered the same in negative. The
facts of that case were that one Rakesh Kumar
Singla who joined service as Assistant Engineer on
adhoc basis on 4.1.1980 was appointed on regular
basis with effect from 29.8.1982 afte
after selection by
the Public Service Commission. He represented to
the Government for grant of selection grade on
completion of 12 years service commencing from
4.1.1980. As the Government did not accede to his
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request, Rakesh Kumar Singla filed writ petition in
the High Court. On a reference made by the
Division Bench, the matter was placed before a
bench of three-Judges.
Judges. By majority judgment, the
larger bench held that the service rendered by an
employee on the basis of adhoc appointment must
be clubbed with his regular service for the purpose
of grant of selection grade in terms of the policy
framed by the State Government. This Court
reversed the judgment of the High Court and held :
“Coming to the circular dated 22-6-1989,
issued by the Financial Commissio
Commissioner and
Secretary to the Government of Haryana,
Finance Department, it appears that the
aforesaid circular had been issued for
removal of anomalies in the pay scale of
Doctors, Deputy Superintendents and
Engineers, and so far as Engineers are
concerned, which
ich are in Class I and Class II,
it was unequivocally indicated that the
revised pay scale of Rs. 3000 to Rs. 4500 can
be given after completion of 5 years of
regular service and Rs. 4100 to Rs. 5300 after
completion of 12 years of regular service. The
saidd Financial Commissioner had issued yyet
another circular dated 16
16-5-1990, in view of
certain demands made by officers of different
departments. The aforesaid circular was
issued after reconsideration by the
Government modifying to some extent the
earlier circular
ircular of 22-6-1989, and even in this
circular it was categorically indicated that so
far as Engineers are concerned, they would
get Rs. 3000 to 4500 after 5 years of regular
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and satisfactory service and selection grade
in the scale of pay of Rs. 4100 to R
Rs. 5300,
which is limited to the extent of 20% of the
cadre post should be given after 12 years of
regular and satisfactory service.
The aforesaid two circulars are unambiguous and
unequivocally indicate that a Government servant
would be entitled to the higher scale indicated
therein only on completion of 5 years or 12 years of
regular service and further the number of persons to
be entitled to get the selection grade is limited to
20% of the cadre post. This being the position, we
fail to understand how services rendered by Rakesh
Kumar from 1980 to 1982, which was purely on ad
hoc basis, and was not in accordance with the
statutory rules can be taken into account for
computation of the period of 12 years indicated in
the circular. The majority judgment oof the High
Court committed serious error by equating
expression “regular service” with “continuous
service”. In our considered opinion under the terms
and conditions
ons of the circulars dated 22-6-1989 and
16-5-1990,
1990, the respondent Rakesh Kumar would be
entitled
ed for being considered to have the selection
grade on completion of 12 years from 29
29-1-1982 on
which date he was duly appointed against a
temporary post of Assistant Engineer on being
selected by the Public Service Commission and not
from any earlier pointt of time. The conclusion of the
majority judgment in favour of Rakesh Kumar,
therefore, cannot be sustained.”
The Court then referred to the provisions contained
in the Haryana Service of Engineers, Class
Class-II,
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Public Works Department (Irrigation Branch)
Rules, 1970 and held :-
“A combined reading of the aforesaid
provisions of the Recruitment Rules puts the
controversy beyond any doubt and the only
conclusion which could be drawn from the
aforesaid Rules is that the services rendered
either on an ad hoc bbasis or as a stopgap
arrangement, as in the case in hand from
1980 to 1982 cannot be held to be regular
service for getting the benefits of the revised
scale of pay or of the selection grade under
the Government memorandum dated 22- 6-
1989 and 16-5–1990, and therefore, the
majority judgment of the High Court must be
held to be contrary to the aforesaid
provisions of the Recruitment Rules,
consequently cannot be sustained. The initial
letter of appointment dated 66-12-1979
pursuance to which respondent Rakesh
Kumar joined as an Assistant Engineer on an
ad hoc basis in 1980 was also placed before
us. The said appointment letter unequivocally
indicates that the offer of appointment as
Assistant Engineer was on ad hoc basis and
clauses 1 to 4 of the said letter fu
further
provides that the appointment will be on an
ad hoc basis for a period of 6 months from
the date of joining and the salary was a fixed
salary of Rs. 400 p.m. in the scale of Rs. 400
to Rs. 1100 and the services were liable to be
terminated without any notice and at any time
without assigning any reason and that the
appointment will not enable the appointee
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any seniority or any other benefit under the
Service Rules for the time being in force and
will not count towards increment in the time
scale. In view
ew of the aforesaid stipulations in
the offer of appointment itself we really fail to
understand as to how the aforesaid period of
service rendered on ad hoc basis can be held
to be service on regular basis. The conclusion
of the High Court is contrary to the very
terms and conditions stipulated in the offer of
appointment and, therefore, the same cannot
be sustained. The regular letter of
appointment dated 29
29-1-1982 in favour of
Rakesh Kumar was also produced before us
and that letter indicates that the re
respondent
Rakesh Kumar along with others had applied
to the Secretary, Haryana Public Service
Commission for being appointed as an
Assistant Engineer and the Service
Commission after selecting the number of
persons prepared a list and appointment
letters were
re issued by the Government from
the said list on the basis of the merit position
of different candidates. Thus the appointment
of respondent Rakesh Kumar was a fresh
appointment in accordance with the statutory
rules after the Public Service Commission
adjudged
judged their suitability and the regular
service of the respondent Rakesh Kumar must
be counted from the date he joined the post
pursuant to the offer of appointment dated
29-1-1982
1982 and the prior service rendered by
him on ad hoc basis cannot be held to be
regular service nor can it be tagged on to the
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later service for earning the benefit under the
Government circular dated 22-6-1989 as well
as the clarificatory circular dated 16
16-5-1990.
The conclusion of the majority judgment of
the High Court, therefore, is wholly
erroneous and cannot be sustained.”
12. In State of Punjab and others v. Ishar Singh
and others, 2002(1) SCT 72 : [(2002)10 SCC 674]
and State of Punjab and others v. Gurdeep Kumar
Uppal and others [(2003)11 SCC 732]
732], the two-
Judge Benches referred
red to the judgment in State of
Haryana v. Haryana Veterinary & AHTS
Association (supra) and held that adhoc service
rendered by the respondents cannot be clubbed with
their regular service for the purpose of grant of
revised pay scales, senior/selection ggrade,
proficiency step-up
up and for fixation of seniority.
13. A reading of the scheme framed by the Board
makes it clear that the benefit of time bound
promotional scales was to be given to the employees
only on their completing 9/16 years regular service.
Likewise, the benefit of promotional increments
could be given only on completion of 23 years
regular service. The use of the term ‘regular service’
in various paragraphs of the scheme shows that
service rendered by an employee after regular
appointment could
ould only be counted for computation
of 9/16/23 years service and the service of a
temporary, adhoc or work charged employee cannot
be counted for extending the benefit of time bound
promotional scales or promotional increments. If
the Board intended that total service rendered by
the employees irrespective of their mode of
recruitment and status should be counted for the
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purpose of grant of time bound promotional scales
or promotional increments, then instead of using the
expression ‘9/16 years regular ser
service’ or ’23 years
regular service’, the concerned authority would
have used the expression ‘9/16 years service’ or ’23
years service’. However, the fact of the matter is
that the scheme in its plainest term embodies the
requirement of 9/16 years regular sservice or 23
years regular service as a condition for grant of
time bound promotional scales or promotional
increments as the case may be. For the reasons
mentioned above, we hold that the respondents were
not entitled to the benefit of time bound promotio
promotional
scales/promotional increments on a date prior to
completion of 9/16/23 years regular service and the
High Court committed serious error by directing the
appellants to give them benefit of the scheme by
counting their work charged service.”
11. To the same effect are the Division Bench
judgments of this Court in the cases of Amarjit Singh and
Gurcharan Singh (supra).
12. Learned Single Judge of this Court in
Parmod Kumar’s case (supra), after considering the upto
date law on the subject, has held as un
under: –
“43.
43. For what has been discussed above, it is held
that:-
(i) The petitioners are not entitled to count
their period of ad hoc/work
hoc/work-
charged/temporary service towards seniority
in the cadre before the date they were
regularized and became members of service
for the first time in terms of the relevant
policies of State
tate Government.
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(ii)The petitioners are not entitled to benefit
of Additional Increments for the period of
their ad hoc/work
hoc/work-charged service on
completion of 8/18 years of service as well as
10/20 years, since such period does not
qualify as regular sati
satisfactory service as per
modified scheme dated August 7, 1992.
(iii)Similarly, the petitioners are not entitled
to the benefit of financial upgradations of
Higher Standard Scale or to the Assured
Career Progression Scales for the period of
their ad hoc/workk charge/temporary service
etc. Only regular service rendered
satisfactorily counts for claiming rights to
these monetary benefits strictly as per the
provisions of these schemes.
schemes.”
16. In view of the judgments of the Hon’ble Supreme Court in
State of Haryana v. Haryana Veterinary and A.H.T.S. Association,
2000(4) SCT 664;
664 Punjab State Electricity Board and others v.
Jagjiwan Ram and others, 2009(3) SCT 92; Division Bench
judgments of this Court in Amarjit Singh and others v. State of
Punjab and others,
others 2012(1) SCT 701; State of Punjab and others v.
Gurcharan Singh and others, 2016(4) SCT 615 and Single Bench
judgment of this Court in Parmod Kumar and others v. State of
Haryana and others, 2018(4) PLR 818,
818 the claim of the petitioner for
grant of time scale, seniority and other consequential benefits by
counting the ad hoc service rendered by the petitioner is not
maintainable. Therefore, reliance
eliance placed by the learned counsel for the
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petitioner in the case of Dr. Surinder
nder Kumar Mishra (supra) is totally
misplaced.
17. In view of the above, present petition is dismissed on
account of delay and laches and also on merits.
18. Pending application(s), if any, also stand(s) disposed of.
(NAMIT KUMAR)
18.12.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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