Service Law – Determination of seniority – Ad hoc service, if counted for – Doctrine of res judicata vis-à-vis law of precedent – In view of an earlier writ petition filed by appellants-ad hoc employees against regularly recruited employees appointed after them, seniority list was redrawn and the appellants were granted seniority w.e.f. dates of their initial appointment by including the period of ad hoc service – Fixation of seniority challenged by private respondents who were not party to the earlier writ petition but were adversely affected – Allowed by Single Judge – Appeals, dismissed by Division Bench – Held: In the earlier writ petition, reliance placed by Single Judge on Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra reported as [1990] 2 SCR 900 to hold that ad hoc service should be counted for conferring the benefit of seniority is misplaced – In the present case, initial appointment was supposed to be a stop gap arrangement besides being not in accordance with the rules, thus the ad hoc service cannot be counted for the purpose of seniority, as held in Direct Recruit case – Further, a binding decision of the court which has attained finality would bind only the parties to the proceedings inter-se – Seniority list prepared pursuant to the earlier judgment would not bind those who were not parties to the earlier proceedings and were adversely affected – In view of the express terms of the regularization policy in the present case, seniority would date with effect from the date of regularization – However, during the pendency of the present proceedings, the appellants, the private respondents as well as the appellants in companion appeals received promotions from time to time and have retired from service, thus, the pensionary benefits being disbursed to them not to be disturbed and no recoveries made – Constitution of India – Art.142 – Punjab Civil Secretariat (State Service Class III) Rules 1976.
Disposing of the appeals, the Court
HELD: 1.1 As a matter of first principle, the view which has been adopted in the impugned judgment of the Division Bench of the High Court cannot be faulted. The policy for regularization issued on 3 May 1977 is clear in regard to the date of regularization, the principle for reckoning seniority and the basis on which seniority should be reckoned inter se between persons belonging to the group of ad hoc employees who were regularized. The policy clearly specifies that regularization would be granted to persons who had fulfilled a minimum of one year service as on
31 March 1977. As regards seniority, clause 5(a) specifies that the seniority, upon regularization would date back to 1 April 1977 vis a vis candidates appointed on a regular basis after selection through the prescribed procedure. As between ad hoc employees who were regularized, inter se seniority would however be based on the length of service so that a person possessing longer service would rank senior to a junior in terms of the length of service. The judgment of the Single Judge in Malook Singh’s case-the earlier writ petition (Malook Singh vs. State of Punjab CWP No 2780/1980) essentially dealt with two facets. The first was that persons who were recruited after following the regular procedure for selection after the date of regularization of ad hoc employees on 1 April 1977 could not rank senior to those who had been regularized prior to their date of appointment. The second aspect on which the Single Judge held in favour of the petitioners in CWP No 2780 of 1980 was that once regularization takes place, the length of ad hoc service must count for the determination of seniority. The second facet of the judgment of the Single Judge was specifically kept open in the Letters Patent Appeal by the Division Bench. Therefore, clearly the judgment in Malook Singh’s case did not conclude the issue of whether ad hoc service would count for the purpose of determining seniority. The Special Leave Petition (SLP (C) No 7513 of 1993) against the judgment of the Division Bench was dismissed by this Court on 16 July 1993. The judgement in Malook Singh was subsequently overruled in Gurmail Singh v. State of Punjab. [Paras 8, 18, 19 and 21][1086-D; 1091-C-H; 1092-A; 1095-E-F] Malook Singh v State of Punjab CWP No. 2780/1980; Gurmail Singh v. State of Punjab CWP No. 9200 of 1993 decided on 21 July 1994 – referred to.
1.2 The decision in Direct Recruits stands for the principle that ad hoc service cannot be counted for determining the seniority if the initial appointment has been made as a stop gap arrangement and not according to rules. The reliance placed by the Single Judge in the judgement dated 6 December 1991 on Direct Recruits to hold that the ad hoc service should be counted for conferring the benefit of seniority in the present case is clearly misplaced. The notification dated 3 May 1977 stated that the ad hoc appointments were made in administrative interest in anticipation of regular appointments and on account of delay that takes place in making regular appointment through the concerned agencies. In this regard, the vacancies were notified to the Employment Exchange or advertisements were issued, as the case maybe, by appointing authorities. The appointments were not made on the recommendation of the Punjab Subordinate Service Selection Board. However, subsequently a policy decision was made to regularize the ad hoc appointees since their ouster after a considerable period of service would have entailed hardship. Thus, the initial appointment was supposed to be a stop gap arrangement, besides being not in accordance with the rules, and the ad hoc service cannot be counted for the purpose of seniority. [Para 20][10936-D-E; 1095-C-E]
Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900 – followed.
Keshav Chandra Joshi v. Union of India (1992) 1 Suppl. SCC 272; Rashi Mani Mishra v. State of Uttar Pradesh (2021) SCC OnLine SCC 509 – relied on.
2. A binding decision of the court which has attained finality would bind the parties to the proceedings inter-se. The private respondents in Malook Singh’s case were persons who had been recruited after 1 April 1977 albeit after following a regular process of selection. The judgment, therefore, would only bind those who are parties to the proceedings. The judgment would by no means operate to bind others whose interest did not coincide with the private respondents who are impleaded in the proceedings. This is precisely the reason why the Single Judge in the subsequent proceedings held that the seniority list which was prepared pursuant to the earlier judgment would not operate to bind those persons who were not parties to the earlier proceedings and were adversely affected. In this backdrop, there is no reason for this Court to take a different view than that which has weighed with the High Court in coming to the conclusion that in view of the express terms of the policy of regularization, seniority would date with effect from the date of regularization. [Para 21][1096-C-F]
State of Rajasthan v. Nemi Chand Mahela (2019) 14 SCC 179 : 2019 (7) SCALE 143 – relied on.
3. The appellants and the private respondents, as well as the appellants in the companion appeals have from time to time received their promotions during the pendency of these proceedings and have retired from service. While the judgment of the Division Bench is affirmed on the issue of the principle, it is directed that the pensionary benefits which are being disbursed to the appellants shall not be disturbed. Likewise, the pensionary payments which are being disbursed to the respondents be paid over in accordance with law. No recoveries be made of any nature whatsoever from the appellants. [Paras 22, 23][1096-F-G; 1097E-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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