STATE OF HARYANAversusHARYANA VETERINARY AND A.H.T.S. ASSOCIATION AND ANR.

 A                         STATE OF HARYANA
                                   v.
                     HARYANA VETERINARY AND A.H.T.S.
                         ASSOCIATION AND ANR.

                              SEPTEMBER 19, 2000
 B
                  [G.B. PATTANAIK, D.P. MOHAPATRA AND
                          DORAISWAMY RAJU, JJ.]


           Service Law :
c
           Haryana Se'rvice of Engineers, Class II, Public Works Department
     (Irrigation Branch) Rules, 1970:

        Selection Grade-Grant of-Ad hoc service rendered prior to
  regularisation-Counting of-Held, prior service rendered on ad hoc basis
D is not regular service and cannot be tagged on to the latter service-Hence,
  ad hoc ser\Jice does not count towards regular service for grant of selection
  grade-<Jovermnent of Haryana Circular dated 2. 6: 1989 and Clarificatory
  Circular dated 16.5.1980.

           Words and Phrases:
E
            "Regular Service" and "continuous service "-Meaning of-In the
     context of Haryana Service of Engineers, Class II, Public Works Department
     (Irrigation Branch) Rules, 1970.

           The respondent was appointed to the post of Assistant Engineer on ad
F    hoc basis. Subsequently, the respondent was appointed on a regular basis
     under the Haryana Service of Engineers, Class II. Public Works Department
     (Irrigation Branch) Rules, 1970 and a fresh appointment letter was issued
     to the respond'lnt.

          The respondent filed a writ petition before the High Court for grant
G of selection grade on completion of 12 years of continuous service including
     that put in on ad hoc basis.in accordance with Government Circular dated
     2.6.1989 and Clarificatory Circular dated 16.5.1990. A Full Bench of the
     High Court allowed the writ petition. Hence this appeal.
                                                                                  -
          Allowing the appeal, this Court
H                                      322
                  STATEv. HARYANA VETERINARY ANDA.H.T.S.ASSON.                323

         HELD : 1.1. The Government Circular dated 2.6.1989 and Clarificatory        A
    Circular dated 16.5.1990 are unambiguous and unequivocally indicate that
    a Government servant would be entitled to the higher scale indicated therein
    on completion of 12 years of regular service. Ther~fore, the services rendered
    by the respondent on ad hoc basis which was not in accordance with the
    Haryana Service of Engineers, Class II, Public Works Department (Irrigation
    Branch) Rules, 1970 cannot be taken into account for computation of the          B
    period of 12 years indicated in the Circulars. [327-C-G)

          1.2. Under the terms and conditions of the Circulars dated 2.6.1989
    and 16.5.1990, the respondent would be entitled for being considered to have
    the Selection Grade on completion of 12 years from t~e date on which be was C
    appointed duly against a temporary post of Assistant Engineer and not from ,
    any earlier point of time. The High Court committed serious error by equating
    the expression "regular service" with "continuous service".
                                                                  [327-H; 328-A]

          2. The prior service rendered by the respondent on ad hoc basis cannot     D
    be held to be regular service nor can it be tagged on to the latter service
    for earning the benefit under the Government Circular dated 2.6.1989 as
    well as the Clarificatory Circular dated 16.5.1990. [330-D)

         Rakesh Kumar Sing/av. State of Haryana, (Civil Writ petition No.            E
    15031) of 1993 (P & ff) (FB), reversed.

r           CIVIL APPELLATE JU.RISDICTION : Civil Appeal No. 13423 of
    1996.

         From the Judgment and Order dated 25.1.96 of the Punjab and Haryana         F
    High Court in C.W.P. No. 3759of1995.

                                          WITH

          C.A. Nos. 15013/96, 179/97, 3016/97, 5983/97, 917/92, 5192/97, 5234-37/    G
    97, 1889/98, 606812000, 606912000, 6070/2000, 607112000, 607212000.

          P.C. Jain, Neeraj Kumar Jain, Mahabir Singh, Debasis Misra, Ms. Minakshi
    Vij, B.S. Gupta, Ms. Indu Malhotra, Rao Ranjit, A.K. Mahajan, Manoj Swarup,
    A.D. Sikri, Ms. Naresh Bakshi, Goodwill Indeevar, Ms. Meera Mathur, T.C.
    Sharma, R.C. Kaushik, Ms. Santosh Singh and Anis Ahmed Khan for the              H
                                                                                            ~

                                                                                           r
     324                      SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
                                                                                           \<
 A appearing parties.
           The Judgment of the Court was delivered by                                      •
                                                                                           r
           PATTANAIK, J. Delay condoned.                                                   I<-
                                                                                           '-
          Leave granted in SL~ (C) Nos. 5518/97, 2948/98, 19093/98, 9932/2000 &
 B
     SLP (C) NO. 17724/2000 (CC No. 3881 ).

         PATTANAIK, J. In these batch of appeals, filed by the State of Haryana,
  .the question for consideration is, the services rendered by an ad hoc appointee
   on the basis of appointment made de hors the Recruitment Rules whether can
c  be counted for earning the benefits of higher scale of pay under the Government
   Memorandum, such appointees on being regularly appointed in accordance
   with the Recruitment Rules at a later point of time? Different appeals concern
   with the appointments made under the different departments of the State of
   Haryana. In all these appeals the Full Bench decision in Rakesh Kumar's case
   has been followed and, therefore, we have chosen to deal with the appeal
D relating to R.K. Singla (Civil Appeal No. 5192of1997).
           Rakesh Kumar Singla filed Civil Writ Petition No. 15031 of 1993, praying
    for issuance of mandamus to the State of Haryana in the Department of
    Irrigation and Power as well as to Engineer-in-Chief in Chief Irrigation
E. Department to grant him selection grade in the cadre of Assistant Engineer;
    It was alleged in the Writ Petition that he joined the post of Assistant
    Engineer on ad hoc basis on 4.1.1980 and later on applied to the Haryana
    Public Service Commission for being considered for the said post of Assistant
    Engineer on regular basis in accordance with the Statutory Rules. He was
    selected by the Haryana Public Service Commission and he was appointed on          .._
F regular basis with effect from 29 .1.1982. He prayed for grant of selection grade
    on completion of total period of service for 12 years commencing from 4.1.1980
                                                                                       I
    in accordance with the circular of the Government ofHaryana dated 2.6.1989.       I,-

   The Government, however, did not grant him the relief sought for and said
   Shri Singla then approached the High Court by filing the Writ Petition.
   According to the writ petitioner, since he was duly appointed on being
G selected by Public Service Commission on 29 .1.1982, and prior to that had
   been appointed as Assistant Engineer on ad hoc basis on 4.1.1980, his
   continuous service from 1980 should be counted for the purpose of 12 year.s        ._
   service, to earn the benefit under the Government Circular dated 2.6.1989 and,     ,.
   therefore, he is entitled to get the selection grade scale with effect from
                                                                                      r
H January 1992.
       STATEv. HARYANA VETERINARY A.H.T.S.ANDASSON. [PATTANAIK,J.]          325
        The State Government resisted the claim of the respondents by              A
contending, inter a/ia that the appointment of Rakesh Kumar Singla on
 4.1.1980 was purely on ad hoc basis and was not in accordance with the
 provisions of Recruitment Rules and he got the regular appointment only on
29 .1.1982 and, therefore, 12 years period required for getting the benefits
 under the Government Circul.ar dated 2.6.1989 would count from the said date
 of 29.1.1982 and not 4.1.1980, as contended by the respondent. The aforesaid      B
 Writ Petition was listed before a Division Bench and the Bench was inclined
 to dismiss the Writ Petition by interpreting the Circular letter dated 2.6.1989
 to mean that under the Circular it is only completion of 12 years regular
service that would entitle the employee concerned for getting the benefit
under the Circular, but since in another case a Coordinate Bench had taken         C
a different view it was thought fit to refer the matter to a larger Bench, and
accordingly, the Division Bench passed orders on July 27, 1994 directing that
the case be placed before the Chief Justice for constitution of a larger Bench
for deciding the issue; "whether the service rendered as a result of ad hoc
l:'.?pointment could be counted for the purpose of 12 years regular service in
the context of Circular No. 6/38/3 PR (FD) - 87 dated 2.6.89 of the Government     D
 of Haryana". Because of this order the case was placed before three Hon 'ble
 Judges of the High Court. Justice Jawahar Lal Gupta on consideration of
relevant Circular as well as several other materials on record came to the
conclusion that the expression "Regular Service" in the context of circular
dated 2nd June, 1989, of the Government of Haryana implies the service             E
rendered by a person an~r the appointment in accordance with the Rules
 governing the recruitment to the post and the service rendered by a person
 on ad hoc basis or otherwise, which is not in conformity with the Rules
cannot be taken into consideration for the purpose of determining his seniority
nor can it be taken into consideration for the purpose of computing the
 prescribed period of service under the Circular. The learned Judge, therefore,    F
answered the reference against the employee. The majority view, however,
was expressed by Hon'ble Sethi, J. (as he then was), who came to the
conclusion that ifthe initial appointment is made following the procedure laid
down by the Rules and the appointee continues on the post uninterruptedly
till the regularisation of the service in accordance with the Rules then his       G
period of ad hoc service shall be counted for the purpose of seniority and
necessarily therefore such period would also enure to the benefit of the
employee for computation of the period of 12 years of regular service under
the Circular dated 2.6.1989. The learned Judge was of the opinion that on
reading the Circular dated 2.6.1989 it cannot be held that the intention of the
Government was to deprive the claim of civil servants who are otherwise            H
     326                      SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

 A entitled to the benefit of ad hoc service for the purpose of the higher scale
     of pay on completion of 12 years service under the Circular dated 2.6.1989.
     On this conclusion the majority judgment allowed the claim of the Writ
     Petitioner R.K. Singla.
            •
            Mr. Jain, the learned senior counsel appearing for the State of Haryana
B    assails the legality of the majority view in Rakesh Kumar's case expressed
     through Hon'ble Justice Sethi, as he then was, on following grounds :

          1. Circular of 89 (2.6. 1989) having unequivocally indicated that the
    category of employees would get the higher scale of pay on completion of
C 12 years of regular service the High Court committed serious error in importing
    the Government intention into the same in deciding the matter on assumption.
    According to Mr. Jain the further Circular dated 16th May, 1990, having
   clarified the position and having categorically indicated that the selection
   grade can be claimed by an employee after 12 years of regular service, the
   High Court was not. justified in directing that the period of ad hoc service
D should also be counted for the computation of 12 years period. According
   to Mr. Jain the recruitment to the post of Assistant Engineer being governed
   by a set of Rules framed under Article 309 of the Constitution called the
   Haryana Service of Engineers, Class II, Public Works Department {Irrigation
   Branch) Rules, 1970, (hereinafter referred to as 'Recruitment Rules')., the so
E called ad hoc appointment of Rakesh Kumar in the year 1980 being de hors
   the provisions of the Recruitment Rules, the aforesaid services till the
   appointment was made on regular basis cannot be held to be regular service
   contemplated under the Government Circular dated 2nd June, 1989, and
   therefore, cannot be counted for computing the 12 years of regular service
   which is required to earn the benefits of the Circular dated 2nd June, 1989.
F Mr. Jain also referred to the different provisions of the Recruitment Rules and
   contended that by no stretch of imagination the services rendered by an ad
   hoc appointee can be held to be regular service and the majority view of the
   High Court, therefore, is erroneous. The learned counsel also contended, on        ..
  the basis of the very appointment letter which had been issued to Rakesh
G Kumar on 6.12.1979, on the basis of which he had joined the services on
  4.1.1980, that in view of the terms of conditions of the appointment the High
  Court in the majority judgment committed serious error of law in directing that
  the period of ad hoc appointment would also be counted for computation of
  12 years of service under the Government Memorandum dated 2nd June, 1989.
  Mr. Jain lastly contended that the appointment letter that was issued to
H Rakesh Kumar on 29 .1.1982 is in fact a fresh appointment after Rakesh Kumar
       STATEv. HARYANAVETERINARY A.H.T.S.ANDASSON. [PATTANAIK,J.]           327
was selected by the Haryana Public Service Commission pursuance to the             A
application made by him to the Service Commission, and as such the earlier
services rendered by him on an ad hoc basis cannot be tagged on to his
regular services from 1982 for the purpose of computation of 12 years period
to earn the benefit of higher scale of pay under the Government Circular dated
2nd June, 1989 and the majority judgment is, therefore, wholly unsustainable       B
in law. When the matter ,was called since the counsel appearing for the
respondent were not present we heard Mr. Jain at length and perused the
different circulars and the provisions of the Rules, as pointed out for deciding
the correctness of the submissions made by Mr. Jain, learned senior counsel
appearing for the State of Haryana.
                                                                                   c
       Coming to the Circular dated 2nd June, 1989, issued by the Financial
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 are in Class I and
 Class II, it was unequivocally indicated that the revised pay scale of Rs. 3,000 D
 to Rs. 4,500 can be given after completion of 5 years of regular service and
Rs. 4, 100 to Rs. 5,300 after completion of 12 years of regular service. The said
Financial Commissioner had issued yet another Circular dated 16th May, 1990,
in view of certain demands made by officers of different departments. The
aforesaid Circular -was issued after re-consideration by the Government E
modifying to some extent the earlier Circular of 2nd June, 1989, and even in
this Circular it was categorically indicated that so far as Engineers are
concerned, they would get Rs. 3,000 to 4,500 after 5 years of regular and
satisfactory service and Selection Grade in the scale of pay of Rs. 4, 100 to
Rs. 5,300, 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 F
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 G
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 period of 12 years indicated in the Circular. The
majority judgment of High Court committed serious error by equating expression
"regular service" with "continuous service". In our considered opinion under
the terms and conditions of the Circulars dated 2nd June, 1989 and 16th May, H
     328                      SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A    1990, the respondent Rakesh Kumar would be entitled for being considered
     to have the Selection Grade on completion of 12 years from 29th January, 1982
     on which date he was appointed duly against a temporary post of Assistant
     Engineer on being selected by the Public Service Commission and not from
     any earlier point of time. The conclusion of the majority judgment in favour
B    of Rakesh Kumar, therefore, cannot be sustained.

           The contention of Mr. Jain, learned senior counsel, appearing for the
     State of Haryana, with reference to the provisions of Recruitment Rules is also
     well founded, as would appear from the analysis made hereunder.

          Under the Recruitment Rules which had been made in exercise of powers
C   conferred by the Proviso to Article 309 of the Constitution "Member of
    Service" means an officer appointed substantively to a cadre post and includes
    in case of a direct appointment an officer on probation or an officer who
    having successfully completed his probation awaits appointment to a cad~e
    post. In case of an appointment by transfer an officer who is on probation
D   or who having successfully completed the probation awaits appointment to
    a cadre post.

          Under Rule 6 of the Recruitment Rules, recruitment to the services in
    the cadre post could be made both by way of direct appointment as well as
    by promotion in the proportion from different sources mentioned in the said
E   Rule. Sub-rule (3) of Rule 6 authorises appointment to a cadre post as stopgap
    arrangement from sources other than the allotted source when a candidate
    from the allotted source is not available from source l and 3, but such
    appointee is liable to be reverted to his original cadre when a candidate from
    the allotted source is available and the period of service rendered by such
F   person shall not be reckoned for the purpose of his seniority.
          Sub-rule (4) of the Rule thus enables the State Government to fi11 up a
    short-term vacancy in the exigencies of public service after recording reasons
    for a period not exceeding six months in each case without resorting to the
    select list prepared under Rule 9.

G          Under Rule 8 appointment to the service has to be made by way of
    direct recruitment strictly in the order of merit indicated by the Public Service
    Commission depending upon the number of vacancies available in the Cadre.

          Under Rule 9 appointment by promotion can be made from the panel to
    be prepared on the basis of merit and suitability in all respects with due regard
H   to seniority, which list has to be forwarded to the Public Service Commission
       STATEv. HARYANAVETERINARY A.H.T.S.ANDASSON. [PATTANAIK,J.]         329

and the Commission on consideration of the list prepared by the Government      A
alongwith other documents received, can make such changes as necessary
and would then forward the approved list to the State Government. It is from
this list appointment to the service has to be made by the Government in the
order in which names have been placed by the Commission, as provided
under sub-rule (9) of Rule 8.
                                                                                B
     Rule 11 provides for continuation on probation for a period of 2 years
and Rule 12 is the Rule for seniority.

       A combined reading of the aforesaid provisions of the Recruitment
Rules puts the controversy beyond any doubt and the only conclusion which C
could be drawn from the aforesaid Rules is that the services rendered either
 on ad hoc basis 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 2nd June, 1989 and 16th May, 1990, and therefore, the
 majority judgment of the High Court must be held to be contrary to the D
 aforesaid provisions of the Recruitment Rules, consequently cannot be
 sustained. The initial letter of appointment dated 6.12.1979 pursuant to which
respondent Rakesh Kumar joined as an Assistant Engineer on 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 E
 basis and Clauses I to 4 of the said letter further provides that the appointment
will be on 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 any seniority or any other benefit under the Service Rules for F
the time being in force and will not count towards increment in the time scale.
In view 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 G
of appointment and, therefore, the same cannot be sustained. The regular
letter of appointment dated 29.1.1982 in favour of Rakesh Kumar was also
produced before us and that letter indicates that the respondent Rakesh
Kumar alongwith 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 H
      330 .                    SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

 A appointment letters were 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 their suitability
      and the regular service of the respondent Rakesh Kumar must be counted
      from the date he joins the post pursuant to the offer of appointment dated
 B    29.1.1982 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 later service for
      earning the benefit under the Government Circular dated 2nd June, 1989 as
      well as the Clarificatory Circular dated 16th May, 1990. The conclusion of the
      majority judgment of the High Court, therefore, is wholly erroneous and
 C    cannot be sustained.

           In view of our conclusions, as aforesaid, the majority judgment of the
     Punjab and Haryana High Court and the directions contained therein is set
     aside and it is held that 12 years period of respondent Rakesh Kumar could
     be counted from year 1982 for being eligible to get the Selection Grade under
D    the Government Circular dated 2nd June, 1989 as well as clarificatory Circular
     dated 16th may, 1990. The Civil Appeal filed by the State of Haryana stands
     allowed.

           Since the judgment of Rakesh Kumar has been followed in all other
     cases which are also the subject matter of appeal before this Court in the
E    tagged on matters, following the conclusions arrived at by us in Rakesh
     Kumar's case the impugned judgment and direction in all these matters are
     set aside and the appeals filed by the State of Haryana stand allowed.

          Delay in filing the application for substitution in C.A. No. 179/97 is
F    condoned, and application for substitution stands allowed.

            Along with these matters, sixteen other cases (C.A. Nos. 5740-41/97,
      6070/97, 24/98, 5833/98, 444/99, 808/99, 1461/99, 2649-2653/99, 1143/98, 844/
      2000, 1887-88/2000, 4487/2000 and S.L.P. (Civil) Nos. 9767/98, 19091/98, 5425/
     98 and 5424/99) had also been tagged on but in those cases the employees
G    were initially appointed on work-charge basis and later on, their services
     stood regularised and one of the contentions of the respondents is that the
     period rendered on work-charge basis count for seniority, increment and
     pension. In this view of the matter, those cases are de-linked and would. be
     listed afresh for hearing.

H v.s.s.                                                         Appeals allowed.