MALOOK SINGH AND OTHERSversusSTATE OF PUNJAB AND OTHERS

1080                      [2021]REPORTS
                SUPREME COURT   7 S.C.R. 1080                [2021] 7 S.C.R.


 A                      MALOOK SINGH AND OTHERS
                                         v.
                       STATE OF PUNJAB AND OTHERS
                       (Civil Appeal Nos 6026-6028 of 2021)
 B                             SEPTEMBER 28, 2021
                [DR. DHANANJAYA Y. CHANDRACHUD,
              VIKRAM NATH AND B V NAGARATHNA, JJ.]
              Service Law – Determination of seniority – Ad hoc service, if
       counted for – Doctrine of res judicata vis-à-vis law of precedent – In
 C
       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
 D     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
 E
       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
 F     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
 G
       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
 H     Service Class III) Rules 1976.
                                         1080
 MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                       1081
                   OTHERS

      Disposing of the appeals, the Court                             A
       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   B
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    C
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       D
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          E
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       F
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        G
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]

                                                                      H
1082            SUPREME COURT REPORTS                       [2021] 7 S.C.R.


 A           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
 B     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
 C     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
 D     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
 E     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
 F           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.

 G            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
 H
 MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                         1083
                   OTHERS

operate to bind others whose interest did not coincide with the         A
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
                                                                        B
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                 C
      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           D
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        E
whatsoever from the appellants. [Paras 22, 23][1096-F-G; 1097-
E-G]
                       Case Law Reference
[1990] 2 SCR 900                      followed          Para 6
                                                                        F
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6026-
6028 of 2021.
      From the Judgment and Order dated 15.03.2011 of the High Court
of Punjab and Haryana at Chandigarh in L.P.A. Nos.471, 472 and 476
of 2011.
                                                                        G
      With
      Civil Appeal Nos. 6024 and 6025 of 2021.
     P. S. Patwalia, Sr. Adv., Ms. Pragati Neekhra, Ms. Manju Jetley,
Subhasish Bhowmick, Advs. for the Appellants.
                                                                        H
1084               SUPREME COURT REPORTS                          [2021] 7 S.C.R.


 A              Ms. Ranjeeta Rohatgi, Arun K. Sinha, Advs. for the Respondents.
                The Judgment of the Court was delivered by
                DR DHANANJAYA Y CHANDRACHUD, J.
                1. Leave granted.
 B          2. This batch of appeals arises from a judgment and order dated
       15 March 2011 of a Division Bench of the High Court of Punjab and
       Haryana.
             3. For convenience of reference, the facts as they emerged in the
       lead Civil Appeal1 may be set out.
 C
             4. The appellants were appointed as clerks in 1975-1976 in the
       Punjab Civil Secretariat on an ad hoc basis. On 3 May 1977, their services
       were regularized with effect from 1 April 1977 pursuant to a policy of
       regularization. The policy of regularization notes that in anticipation of
       regular appointments, ad hoc appointments were resorted to by various
 D     appointing authorities in “administrative interest” after notifying the
       vacancies to the employment exchange or, as the case may be, by issuing
       advertisements. Since the ad hoc employees had acquired experience,
       and their ouster after a considerable period of service would entail
       hardship, their services were regularized, subject to certain terms and
       conditions. Clause (5) of the policy on regularization contained the
 E
       following stipulations:
                “5. The seniority of the ad hoc employees whose appointments
                are regularized in terms of the above policy shall be determined in
                the following manner:-
 F              (a) After approval by the Appointing Authority the regularization
                of their appointments shall date back to 1st April, 1977 from which
                date their seniority shall be determined vis-à-vis candidates
                appointed on regular basis after selection through the prescribed
                agencies;
 G              (b) The service rendered on ad hoc basis shall be taken into account
                for purposes of determining inter se seniority among the ad hoc
                employees themselves and a person having a longer service shall
                be senior and if the date of appointment on ad hoc basis is the
                same, then the older member shall be senior to a younger member.”

 H     1
           CA 6026-6028/2021 @ SLP(C) 14029-14031/2011
    MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                           1085
      OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

       5. From the above stipulations, it becomes evident that the           A
regularization in terms of the policy dated 3 May 1977, was to become
effective on 1 April 1977 from which date their seniority would be
determined in relation to candidates who were appointed on a regular
basis after following the normal procedures for selection. However, as
between the ad hoc employees who were regularized, it was stipulated
                                                                             B
that service rendered on an ad hoc basis shall be taken into account so
that a person having a longer service shall be senior and if the date of
appointment on ad hoc basis was the same, the older member would
rank senior to the younger.
       6. A batch of seventy-three clerks, including the appellants, who
were working in the office of the Punjab Civil Secretariat instituted a      C
writ petition2 under Article 226 to challenge the seniority position as it
stood on 31 December 1978 (Malook Singh v State of Punjab). Besides
the official respondents, twenty-seven private respondents were impleaded
as parties to the writ petition. These respondents, it must be noted, were
regularly appointed candidates who had been appointed after 1 April          D
1977. The petitioners in those proceedings claimed the benefit of ad hoc
service rendered by them towards their seniority as against regularly
recruited clerks appointed after them. By a judgment and order dated 6
December 1991, a Single Judge of the High Court observed that in
terms of Rule 9 of the Punjab Civil Secretariat (State Service Class III)
Rules 1976, the seniority inter se of members of a service in each cadre     E
would be determined by the length of continuous service on a post in the
cadre of service. The Single Judge held that while the petitioners before
the High Court had been regularized from 1 April 1977, the private
respondents were appointed subsequently. As a consequence, those who
were appointed subsequently could not claim seniority over those who         F
were regularized prior to their appointment. Besides the above finding,
Single Judge held that in view of the decision of this Court in Direct
Recruit Class II Engineering Officers’ Association v. State of
Maharashtra3, once the services had been regularized they would relate
back to the date of their initial appointment and the ad hoc service
would have to be kept in view in determining seniority and other benefits.   G
The petition was allowed in the above terms.


2
    CWP No 2780/1980
3
    (1990) 2 SCC 715                                                         H
1086             SUPREME COURT REPORTS                               [2021] 7 S.C.R.


 A            7. The judgment of the Single Judge was carried in a Letters
       Patent Appeal by the State of Punjab. The Division Bench, by its
       judgement dated 4 January 1993, held that the Single Judge was justified
       in coming to the conclusion that persons who had been regularized with
       effect from 1 April 1977 would rank senior to those who had been
       recruited after their date of regularization and to that extent the petitioners
 B
       before the Single Judge had been correctly held to be senior to the private
       respondents. Having held this, the Division Bench however clarified that
       it was expressing no opinion on the second aspect which was adverted
       to by the Single Judge namely, that upon regularization, the services of
       the petitioners for the purpose of seniority would relate back to the date
 C     of their initial appointment. This question was left open to be dealt in an
       appropriate case with a clarification that the judgment of the Single Judge
       would not be treated as a binding precedent.
              8. The Special Leave Petition4 against the judgment of the Division
       Bench was dismissed by this Court on 16 July 1993. Contempt petitions
 D     were filed before the High Court for non-compliance of the judgment of
       the Single Judge dated 6 December 1991. During the pendency of the
       contempt petitions, the seniority list was redrawn and finalized by an
       Office Order dated 14 January 1994. According to the seniority list, the
       appellants to these proceedings were granted seniority with effect from
       their dates of initial appointment by including the period of ad hoc service.
 E     The contempt petitions were disposed of by the High Court by its order
       dated 12 August 1994.
              9. A batch of writ petitions5 was instituted before the High Court
       to challenge the fixation of seniority. The persons who instituted these
       petitions had a grievance that the fixation of seniority had been made
 F     without affording a hearing to them and that the judgment of the High
       Court dated 6 January 1991 would not bind them since they were not
       parties to the earlier writ petition6. The State of Punjab contested the
       proceedings. The Single Judge, by an order dated 5 January 2011, allowed
       the writ petitions which were instituted by the private respondents. The
 G     Single Judge came to the conclusion that the judgment in CWP No 2780
       of 1980 (Malook Singh v. State of Punjab) had been overruled by a


       4
         SLP (C) No 7513 of 1993
       5
         Writ Petition Nos 2607 of 1994, 1702 of 1994 and 2341 of 1995
       6
 H       CWP No 2780 of 1980
    MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                            1087
      OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

Division Bench of the High Court in Gurmail Singh v. State of Punjab7.        A
The Single Judge also noted that another writ petition8 was filed before
the High Court, which was allowed by a Single Judge of the High Court
on 24 December 1997, on the basis of the decision in Malook Singh’s
case. Against the said judgment, a Letters Patent Appeal9 was preferred,
which was allowed on 8 January 1999, adverting to the fact that in
                                                                              B
Gurmail Singh’s case, the decision in Malook Singh had been
overruled. Moreover, it was also observed that in the Letters Patent
Appeal, which was filed before the Division Bench in Malook Singh’s
case, it was specifically observed that the judgment of the Single Judge
would not be cited as a precedent to determine whether ad hoc service
would be reckonable for the purpose of seniority. Against the judgement       C
of the Division Bench of the High Court, Special Leave Petitions10 were
filed before this Court which were dismissed in limine on 19 July 1999.
After adverting to these developments, the Single Judge came to the
conclusion that it was a well settled principle that where the initial
appointment is made without following due procedure in accordance
                                                                              D
with the mandate of Articles 14 and 16, ad hoc service would not count
for the determination of seniority. The Single Judge held that the decision
in Malook Singh’s case having attained finality would bind the State,
the petitioners and the private respondents who were parties to that
proceeding. The rights of parties which were determined by a conclusive
judgment could not be thus reopened as between the parties to that            E
proceeding. Consequently, the Single Judge held that as between the
parties to the decision in Malook Singh’s case, the judgment would be
treated as final and binding. On the other hand, the persons who were
appointed by a due process of selection and were not parties to the
earlier proceedings in Malook Singh’s case would not be bound by the
                                                                              F
decision.
       10. Following the judgment of the Single Judge, Letters Patent
Appeals11 were carried to the Division Bench. The Division Bench by
its judgment and order dated 15 March 2011, dismissed the Letters Patent
Appeals. The Division Bench has held that ad hoc service followed by
regularization would not qualify for the purpose of fixing seniority in       G

7
  CWP No. 9200 of 1993 decided on 21 July 1994.
8
  CWP No 16488 of 1995
9
  LPA No 133 of 1998
10
   SLP No 8534-35 of 1999
11
   LPA Nos 471, 472 and 476 of 2011                                           H
1088                    SUPREME COURT REPORTS                         [2021] 7 S.C.R.


 A     view of the law settled by the Supreme Court. At the same time, the
       judgment in Malook Singh’s case would nonetheless enure to the benefit
       of those who were parties to the proceedings but would not adversely
       affect the rights of others who were not parties to the proceedings. The
       judgment of the Division Bench has given rise to the present appeal.
 B             11. While entertaining the Special Leave Petition initially on 6
       June 2011, an order of status quo was passed while issuing notice.
       Subsequently, on 27 April 2012, the order was modified since the State
       Government submitted to the Court that there were vacancies in the
       cadre of Under Secretaries and Deputy Secretaries which were required
       to be filled up. The application for modification was allowed by permitting
 C     the State government to fill up the available vacancies on an ad hoc
       basis. At that stage, the Court was apprised of the fact that out of eighteen
       petitioners, only two petitioners who were working as Superintendents
       at the relevant time were eligible for promotion against the vacancies.
       During the past decade that these proceedings have remain pending
 D     before this Court, all the appellants as well as the respondents have
       been promoted and almost all of them have, as a matter of fact, retired
       from service.
              12. Mr P S Patwalia, learned senior counsel appearing on behalf
       of the appellants in the appeal arising out of the lead Special Leave
 E     Petition12 has urged the following submissions:
                 (i)      All the appellants have, as a matter of fact, received their
                          promotions during the pendency of the proceedings and have
                          retired, beginning well over a decade ago;
                 (ii)     When the appellants were appointed on an ad hoc basis,
 F                        the initial appointment, strictly speaking cannot be construed
                          to be of a back door entry having regard to the fact that the
                          employment exchange was notified and they were selected
                          by regular selection committees though not by the Punjab
                          Subordinate Service Selection Board13;
 G               (iii)    The High Court has correctly come to the conclusion that
                          as between the parties to the decision, in Malook Singh’s
                          case, the judgment would continue to bind notwithstanding

       12
            SLP (C) Nos 14029-14031 of 2011
 H     13
            PSSSB
 MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                                  1089
   OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

               the fact that it has been subsequently disapproved in another     A
               judgment of High Court; and
       (iv)    In consequence, insofar as the State is concerned, it would
               be bound to give effect to the decision in Malook Singh
               and at this stage, all that the appellants would seek is that
               their pensionary payments be duly protected.                      B
       13. On the above premises, Mr Patwalia, learned senior counsel
submits that at this length of time, it would be manifestly in the interest
of justice if the pensionary benefits which are being drawn by the
appellants are protected and a direction is issued by this Court in the
exercise of its jurisdiction under Article 142 of the Constitution restraining   C
the State from making any recoveries in respect of the payments which
have already been made.
       14. Ms Anusha Nagarajan, counsel appearing on behalf of the
State of Punjab has on the other hand, urged the following submissions:
       (i)     Though the judgment of the Single Judge in Malook                 D
               Singh’s case had held that the benefit of ad hoc service
               must be counted for the purpose of determining seniority of
               those who are regularized with effect from 1 April 1977,
               this was specifically kept open by the Division Bench in the
               Letters Patent Appeal and as a consequence, the claim for         E
               counting ad hoc service in determining seniority was not
               decided;
       (ii)    The order of regularization dated 3 May 1977, specifically
               provides that (a) seniority shall be reckoned from 1 April
               1977; and (b) as between ad hoc employees whose services          F
               were regularized, their inter se seniority would be based on
               the length of ad hoc service;
       (iii)   In CWP No 2780 of 1980, the respondents were directly
               recruited candidates who were appointed after 1 April 1977,
               as a consequence of which, the Single Judge had come to
                                                                                 G
               the conclusion that the persons who were regularized with
               effect from 1 April 1977 would rank senior to those who
               were recruited after that date;
       (iv)    As a matter of fact, in the first round of proceedings, persons
               who were directly recruited and appointed prior to 1 April
                                                                                 H
1090                SUPREME COURT REPORTS                           [2021] 7 S.C.R.


 A                    1977 were not impleaded as parties to the proceedings and
                      clearly, they would not be governed by the earlier judgment
                      which would not bind them; and
              (v)     In this backdrop, having regard to the well settled position
                      in law, it was correctly held by the Single Judge of the High
 B                    Court that ad hoc service of persons who had originally
                      been appointed without following due procedure would not
                      count for the purpose of seniority.
              15. Learned counsel consequently submitted that having due regard
       to the fact that the principle which was sought to be espoused by the
 C     Single Judge in Malook Singh’s case – that ad hoc appointment would
       count for the purpose of seniority has been overruled not only by the
       High Court subsequently, but does not reflect the correct position in law,
       the impugned judgment of the Division Bench would need to be sustained.
       At the same time, learned counsel has expressed before the Court the
       practical difficulty of redrawing and revising the seniority list at this length
 D     of time in respect of persons who were appointed as far back as in 1977,
       all of whom have retired from service after receiving their promotion
       orders.
              16. During the course of these proceedings, we have also heard
       Mr Arun K Sinha, learned counsel appearing on behalf of some of the
 E     contesting respondents and Mr Surjit Singh Swaich, learned counsel
       appearing on behalf of the appellants in the companion appeals. Insofar
       as the private respondents represented by Mr Sinha are concerned, it
       may be noted that their grievance specifically is in regard to the manner
       of appointment of the appellants. In the counter affidavit which has been
 F     filed in these proceedings on their behalf, it has been stated that the
       policy of the State of Punjab dated 3 May 1977 regularizing the services
       of the ad hoc employees with effect from 1 April 1977 clarified that
       seniority shall be determined with effect from that date. During the period
       from 1 April 1977 (the effective date of regularization) and 3 May 1977
       (the date of issuing the order for regularization), some clerks had joined
 G     on different dates on the recommendations of the PSSSB. Though the
       recommendations of the PSSSB were made on diverse dates between
       December 1976 and April 1977, they had joined service before the issuance
       of the notification of regularization in the cadre of clerks as it stood on
       31 December 1978. On these grounds, it has been submitted that the
 H
     MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                           1091
       OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

appellants ought not to rank higher in seniority on the basis of the length   A
of ad hoc service.
       17. Mr Surjit Singh Swaich, learned counsel has appeared on behalf
of a batch of persons who were petitioners before the High Court in
another batch of writ petitions14. It may be noted at this stage, that they
had sought seniority on the basis of the judgment in Malook Singh’s           B
case.The High Court has rejected their claim on the ground that Malook
Singh is not an authority for the proposition that ad hoc service prior to
the date of regularization should count in the effectuation of seniority
and, in any event, the issue has been kept open in the judgment of the
Division Bench in a Letters Patent Appeal against the judgment of the
Single Judge.                                                                 C

        18. 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          D
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      E
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.
                                                                              F
       19. The judgment of the Single Judge in Malook Singh’s
caseessentially 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       G
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. It is important to note here that the second facet of the
judgment of the Single Judge was specifically kept open in the Letters
14
     CWP No 16925 of 2003 and CWP No 4490 of 1994.                            H
1092            SUPREME COURT REPORTS                           [2021] 7 S.C.R.


 A     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.
              20. The law on the issue of whether the period of ad hoc service
       can be counted for the purpose of determining seniority has been settled
 B     by this Court in multiple cases. In Direct Recruits (supra), a Constitution
       Bench of this Court has observed:
             “13. When the cases were taken up for hearing before us, it was
             faintly suggested that the principle laid down in Patwardhan case
             [(1977) 3 SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR 775]
 C           was unsound and fit to be overruled, but no attempt was made to
             substantiate the plea. We were taken through the judgment by the
             learned counsel for the parties more than once and we are in
             complete agreement with the ratio decidendi, that the period of
             continuous officiation by a government servant, after his
             appointment by following the rules applicable for substantive
 D           appointments, has to be taken into account for determining his
             seniority; and seniority cannot be determined on the sole test of
             confirmation, for, as was pointed out, confirmation is one of the
             inglorious uncertainties of government service depending neither
             on efficiency of the incumbent nor on the availability of substantive
 E           vacancies. The principle for deciding inter se seniority has to
             conform to the principles of equality spelt out by Articles 14 and
             16. If an appointment is made by way of stop-gap
             arrangement, without considering the claims of all the
             eligible available persons and without following the rules
             of appointment, the experience on such appointment cannot
 F           be equated with the experience of a regular appointee,
             because of the qualitative difference in the appointment.
             To equate the two would be to treat two unequals as equal
             which would violate the equality clause. But if the appointment
             is made after considering the claims of all eligible candidates and
 G           the appointee continues in the post uninterruptedly till the
             regularization of his service in accordance with the rules made
             for regular substantive appointments, there is no reason to exclude
             the officiating service for purpose of seniority. Same will be the
             position if the initial appointment itself is made in accordance with

 H
     MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                            1093
       OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

         the rules applicable to substantive appointments as in the present    A
         case. To hold otherwise will be discriminatory and arbitrary…..
         …..
         47. To sum up, we hold that
         (A) Once an incumbent is appointed to a post according to             B
         a rule, his seniority has to counted from the date of
         appointment and not according to date of his confirmation.
         The corollary to the above rule is that where the initial
         appointment is only ad hoc and not according to rules and
         made as a stop-gap arrangement, the officiation in such post
         cannot be taken into account considering the seniority.”              C

                                                    (emphasis supplied)
        The decision in Direct Recruits (supra) 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            D
according to rules. The reliance placed by the Single Judge in the
judgement dated 6 December 1991 on Direct Recruits (supra) to hold
that the ad hoc service should be counted for conferring the benefit of
seniority in the present case is clearly misplaced. This principle laid down
in Direct Recruits (supra) was subsequently followed by this Court in
Keshav Chandra Joshi v. Union of India15. Recently a two judge                 E
Bench of this Court in Rashi Mani Mishra v. State of Uttar Pradesh16,
of which one of us (Justice DY Chandrachud) was a part, observed that
the services rendered by ad hoc employees prior to their regularization
cannot be counted for the purpose of seniority while interpreting the
Uttar Pradesh Regularization of Ad Hoc Appointment Rules. This Court           F
noted that under the applicable Rules, “substantive appointment” does
not include ad hoc appointment and thus seniority which has to be counted
from “substantive appointment” would not include ad hoc service. This
Court also clarified that the judgement in Direct Recruits (supra) cannot
be relied upon to confer the benefit of seniority based on ad hoc service
since it clearly states that ad hoc appointments made as stop gap              G
arrangements do not render the ad hoc service eligible for determining
seniority. This Court speaking through Justice MR Shah made the
following observations:
15
     1992 Supp (1) SCC 272
16
     2021 SCC OnLine SCC 509                                                   H
1094      SUPREME COURT REPORTS                           [2021] 7 S.C.R.


 A     “36. The sum and substance of the above discussion would be
       that on a fair reading of the 1979 Rules, extended from time to
       time; initial appointment orders in the year 1985 and the subsequent
       order of regularization in the year 1989 of the ad hoc appointees
       and on a fair reading of the relevant Service Rules, namely Service
       Rules, 1993 and the Seniority Rules, 1991, our conclusion would
 B
       be that the services rendered by the ad hoc appointees prior to
       their regularization as per the 1979 Rules shall not be counted for
       the purpose of seniority, vis-à-vis, the direct recruits who were
       appointed prior to 1989 and they are not entitled to seniority from
       the date of their initial appointment in the year 1985. The resultant
 C     effect would be that the subsequent re-determination of the
       seniority in the year 2016 cannot be sustained which was
       considering the services rendered by ad hoc appointees prior to
       1989, i.e., from the date of their initial appointment in 1985. This
       cannot be sustained and the same deserves to be quashed and set
       aside and the seniority list of 2001 counting the services rendered
 D
       by ad hoc appointees from the date of their regularization in the
       year 1989 is to be restored.
       37. Now so far as the reliance placed upon the decision of this
       Court in the case of Direct Recruit Class II Engg. Officers’ Assn.
       (supra), relied upon by the learned Senior Advocate appearing on
 E     behalf of the ad hoc appointees is concerned, it is required to be
       noted that even in the said decision also, it is observed and held
       that where initial appointment was made only ad hoc as a stop
       gap arrangement and not according to the rules, the officiation in
       such post cannot be taken into account for considering the seniority.
 F     In the case before this Court, the appointments were made to a
       post according to rule but as ad hoc and subsequently they were
       confirmed and to that this Court observed and held that where
       appointments made in accordance with the rules, seniority is to be
       counted from the date of such appointment and not from the date
       of confirmation. In the present case, it is not the case of
 G     confirmation of the service of ad hoc appointees in the year 1989.
       In the year 1989, their services are regularized after following
       due procedure as required under the 1979 Rules and after their
       names were recommended by the Selection Committee constituted
       under the 1979 Rules. As observed hereinabove, the appointments
 H     in the year 1989 after their names were recommended by the
     MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                             1095
       OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

          Selection Committee constituted as per the 1979 Rules can be          A
          said to be the “substantive appointments”. Therefore, even on
          facts also, the decision in the case of Direct Recruit Class II
          Engg. Officers’ Assn. (supra) shall not be applicable to the facts
          of the case on hand. At the cost of repetition, it is observed that
          the decision of this Court in the case of Direct Recruit Class II
                                                                                B
          Engg. Officers’ Assn. (supra) was considered by this Court in the
          case of Santosh Kumar (supra) when this Court interpreted the
          very 1979 Rules.”
       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         C
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             D
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.
                                                                                E
       21. Now the question that remains is that who would be bound by
the judgement given in Malook Singh judgement which was subsequently
overruled in Gurmail Singh. In State of Rajasthan v. Nemi Chand
Mahela17 a two judge Bench of this Court has elucidated the difference
between the doctrine of res judicata and law of precedent in the following
terms:                                                                          F

          “11…The reasoning given in paras 22 and 23 in Manmohan
          Sharma case [Manmohan Sharma v. State of Rajasthan, (2014) 5
          SCC 782 : (2014) 2 SCC (L&S) 8] relating to the case of Danveer
          Singh would reflect the difference between the doctrine of res
          judicata and law of precedent. Res judicata operates in               G
          personam i.e. the matter in issue between the same parties
          in the former litigation, while law of precedent operates in
          rem i.e. the law once settled is binding on all under the

17
     (2019) 14 SCC 179                                                          H
1096            SUPREME COURT REPORTS                          [2021] 7 S.C.R.


 A           jurisdiction of the High Court and the Supreme Court. Res
             judicata binds the parties to the proceedings for the reason
             that there should be an end to the litigation and therefore,
             subsequent proceeding inter se parties to the litigation is
             barred. Therefore, law of res judicata concerns the same
             matter, while law of precedent concerns application of law
 B
             in a similar issue. In res judicata, the correctness of the
             decision is normally immaterial and it does not matter
             whether the previous decision was right or wrong, unless
             the erroneous determination relates to the jurisdictional
             matter of that body. [Internal citations omitted]”
 C                                                       (emphasis supplied)
              Thus, 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
 D     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
 E     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
 F     date of regularization.
              22. Having resolved the above issue, as a matter of principle, the
       Court is then left with moulding the relief. Both 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
 G     these proceedings and have retired from service. Some among them
       have retired nearly a decade ago. There may be some merit in the
       submissions which have been urged by Mr P S Patwalia, learned senior
       counsel that the judgment in CWP No 2780 of 1980 must govern those
       who are parties to the proceedings and cannot be resiled from by the
 H     State which was bound by the ultimate direction. Recasting the seniority
 MALOOK SINGH AND OTHERS v. STATE OF PUNJAB AND                                  1097
   OTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

of persons who have retired from service after receiving promotions              A
and reworking the dates of notional promotion at this stage for the entire
cadre going back all the way to 1 April 1977 is a daunting exercise for
the State of Punjab. This is a point which was emphasized by Ms Anusha
Nagarajan in the course of her submissions. Revising the seniority at
this length of time would cast an insuperable burden on the State. During
                                                                                 B
the pendency of these proceedings, an exercise was directed to be
conducted on a limited basis, for which several months were required.
Retrieving correct data to rework seniority commencing from April 1977
would be extremely difficult, resulting in further litigation. With this
backdrop, when most of the pensioners have retired from service several
years ago, it would be in the interests of justice if the pensionary benefits    C
which they are now receiving are duly protected both against recoveries
and in respect of their disbursement for the future. Such a direction
would be manifestly in the interest of justice and accordingly we issue
an order under Article 142 of the Constitution to that effect. Insofar as
the private respondents are concerned, they too like the appellants have
                                                                                 D
been promoted from time to time during the pendency of these proceedings
since 2011 and are in the receipt of pensionary benefits. The matter, in
our view, must rest there so that the pensioners are not left in a state of
uncertainty at this stage of their lives after rendering long years of service
to the State in the Punjab Civil Secretariat.
       23. Consequently, while we affirm the judgment of the Division            E
Bench on the issue of the principle which has been decided above, we
direct that:
       (i)     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 shall       F
               be paid over in accordance with law;
       (ii)    No recoveries shall be made of any nature whatsoever from
               the appellants; and
       (iii)   Insofar as the companion appeals are concerned, as                G
               recorded earlier, CWP No 16925 of 2003 and CWP No
               4490 of 1994 were instituted on the basis of the observations
               of the Single Judge in Malook Singh’s case. That aspect
               has been duly clarified both in the Letters Patent Appeal
               and by the Single Judge in the judgment dated 5 January
                                                                                 H
1098            SUPREME COURT REPORTS                         [2021] 7 S.C.R.


 A                    2011. Hence, no further directions are required in the
                      companion appeals. Both sets of appeals are disposed of.
             24. The appeals are accordingly disposed of.
             25. Pending applications, if any, stand disposed of.
 B
       Divya Pandey                                           Appeals disposed of.




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