WRIT PETITION 1545 on 25 March 1983

1. Whether Reporters of local papers may be allowed to see the judgment?2. To be referred to the Reporters or not?3. Whether the judgment should be reported in the Digest?

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Present:Shri Sumeet Sangwan,Advocate, for Shri Harish Rathee, Advocate, for the petitioner.Shri Harish Rathee, Advocate, for the petitioner.

None for the respondent.

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DR.BHARAT BHUSHAN PARSOON, J

In this Civil Writ petition filed under Articles 226/227 of theConstitution of India, the petitioner has sought a writ in the nature ofMandamus or any other writ or orders against the respondent-M.D.University (hereinafter to be referred to as the “respondent-University”),to consider his case for promotion to the post of Assistant with effect fromthe date, his juniors were promoted, along with other consequentialbenefits. Direction was also sought against the respondent-University forplacing the petitioner at serial No. 261 above Shri Rajbir Singh, in theseniority list, taking into account the date of joining of the petitioner on the post of Clerk on ad hoc basis.

Claim of the petitioner is that the petitioner was appointed asClerk on adhoc basis on 25.3.1983 , vide letter (Annexure P-1). Hisservices were regularized on the said post vide order dated 10.11.1983( Annexure P-2). Taking the wrong date of appointment of the petitioneras a regular clerk i.e 28.11.1983, he was placed at serial No. 330 in theseniority list and for this reason he was not promoted as Assistant.Further claim of the petitioner is that in fact he joined his duties on26.3.1983 and thus he should have been placed at serial No. 261 in theseniority list. It is averred that the petitioner was wrongly not promoted asAssistant and even his representation (Annexure P-7) for assigningappropriate place in the seniority list, was not considered.

In addition, the petitioner has claimed that the respondent-University violated its own service rules for non-teaching employees. It isalso claimed that the petitioner was treated differently though he wassimilarly situated with other employees, whose services rendered onadhoc basis were counted towards their probation period but the samebenefit was denied to the petitioner.

The stand of the respondent-University on the contrary isthat no right much less statutory, has been infringed. It has beenexplained that the petitioner was initially appointed as a Clerk purely onadhoc basis and for a period of six months and that too subject tocompliance of certain conditions with effect from 26.3.1983 and had beengiven extension from time to time. One of the conditions contained in theletter of appointment was that the petitioner has to qualify the written testas well as typing test in English at a speed of 30 words per minute.

On his passing the written test, services of the petitionerwere regularized by the University with effect from 22.11.1983 but, hewas further required to pass the type test. Later on, when he could notqualify the type test, relaxing this condition, on expiry of two years of hisprobation period, he was confirmed with effect from 28.11.1985. It isclaimed that service rendered by the petitioner on adhoc basis, thus ,cannot be counted towards his seniority.

It has also been explained that before preparing the finalseniority list, in May 1988 objections were invited from the concernedofficials within 10 days of the issue of the circular, with clear stipulationthat in absence of any objections raised within the stipulated period, theseniority list will be treated as final and that since the petitioner had notraised any objection, it was finalized thereafter. Qua claim of thepetitioner that other non-teaching employees promoted as Assistantswere given the benefits of adhoc service in counting their service period,it is clarified that they had been appointed on regular basis without anyrider or conditions attached to their appointment, which was not the caseof the petitioner, as he was required to qualify the written examination asalso the typing test. In short, the University had claimed that thepetitioner had correctly been placed in the seniority list according to theRules of the University. Prayer for dismissal of the petition was made.

Since, there is no representation on behalf of therespondent-University in this petition and the matter is of 1992, instead ofadjourning the case for the appearance of the counsel for respondent-University, it is considered appropriate to dispose of the matter afterhearing learned counsel for the petitioner.

I have heard learned counsel for the petitioner and perusedthe documents placed on the record.

In the seniority list issued by the respondent-University nameof the petitioner is appearing at serial No. 330, taking the date as22.11.1983 i.e the date of his regularization. No doubt, pursuant to hisappointment on adhoc basis, the petitioner had joined his duties on26.3.1983 but the said period of service rendered on adhoc basis wasnot counted towards the period of regularization.

The reason is not far to seek. It is rather revealed that thepetitioner was appointed on 25.3.1983 purely on adhoc basis for aperiod of six months on the post of a clerk and he joined on 26.03.1983and was required to qualify the prescribed written test as well as typingtest in English and further his services were liable to be terminated at anytime without any notice.

Accepting these conditions contained in the appointmentletter dated 25.3.1983, the petitioner joined his duties on 26.3.1983. Videletter dated 10.11.1983, services of the petitioner were ordered to beregularized, subject to the fulfillment of certain conditions containedtherein which included “Verification of character and antecedents as alsoproduction of medical fitness Certification from a competent authority”.On the fulfillment of said conditions, services of the petitioner wereregularized with effect from 22.11.1983 i.e the date on which the saidconditions had been fulfilled by the petitioner.

Notwithstanding regularization of services of the petitionerwith effect from 22,12,1983 (as per communication of 25.10.1984), thepetitioner was required to pass the type test in English at the speed of 30

words per minutes before being considered for confirmation oncompletion of probation period of one year which was to be counted witheffect from 22.11.1983. Despite the extension of period of probation, thepetitioner had failed to qualify the requisite type test from time to time, tillthe expiry of period of two years of probation and even thereafter.

Showing benevolent mercy, the respondent-Universityrelaxed the condition of passing of typing test and after completion ofthe extended period of probation of two years, the petitioner wasconfirmed as a Clerk.

Facts

From the factual matrix as discussed earlier, it is clear thatpassing of the typing test was a condition precedent for regularization.Coupled with character verification and antecedents as also production ofmedical fitness certificate, without waiting for the passing of requisitetyping test, services of the petitioner were regularized vide letter dated25.10.1984 (Annexure P-3). Since the petitioner was required to qualifythe typing test during the period of probation one year, on his failure to doso his services were to be terminated automatically on this ground.

Condition No.3 of letter dated 25.10.1984 (Annexure P-3) isextracted as under:- “You will, therefore, be on probationfor a period of one year in the first instance andthe probation will be counted with effect from22.11.1983. You will, however, have to qualify thetype test in English at the speed of 30 words perminutes before you are considered forconfirmation on the completion of yourprobationary period. In the event of your failureto qualify the type test, your services may standterminated automatically on this ground”.

The University instead of terminating services of the petitioner for his failure to qualify the typing test, provided himsustenance and support by relaxing the condition of passing of typing testbut the petitioner instead of showing his gratitude towards the Universityhas raised his accusing finger at the respondent and that too without anybasis.

Stand of the University that the seniority list was prepared onthe basis of date of joining of the concerned employees on regular post,and that too after considering the objections from the concerned officials,could not be assailed by the learned counsel for the petitioner.

Thus, it is clear that adhering to the Service Rules, theUniversity had acted fairly and had rather relaxed the condition ofpassing of the typing test when the petitioner had not been able to qualifythe said test even during the extended period of probation of two years.In fact this large hearted approach of the University had attributedtowards the retention of the petitioner in service otherwise in terms of(extracted earlier), the petitioner was to be off the job.

As far as counting of adhoc service rendered by thepetitioner is concerned, when the petitioner had not been able to qualifythe requisite typing test (which was a condition precedent), he wasneither eligible to be appointed as a clerk nor was to be retained inservice. The period of adhoc service of the petitioner could not becounted towards the probation period. Stand of the petitioner that he haswrongly been placed at serial No. 330 in the seniority list, taking the dateof his joining the post of clerk inter-alia on regular basis (i.e aftercomplying with the other requisite conditions), is without any substance.When clerks other than the petitioner, were promoted as Assistants in terms of their seniority viz-a-viz from the date of joining regular service,they cannot be considered juniors to the petitioner.

Looking from another angle, the petitioner was regularizedon the post of a clerk vide letter dated 25.10.1984 with effect from22.11.1983 ignoring the service rendered by him on adhoc basis and onlyafter counting the regular service rendered by the petitioner, he wasconfirmed as a clerk with effect from 28.11.1985 vide communicationdated 22.3.1986. He, however filed the present writ petition only on26.1.1992. Thus, there is long delay in filing the petition revealing thatthe petitioner had been in long slumber.

Consequently, when the petitioner has not been able to showviolation of any Service Rules and when his appointment was on adhocbasis, dehors the Rules and was subject to the condition of qualifying thewritten examination as also of passing of requisite type test in English,the respondent University was right in excluding the period of adhocservice for determination of the seniority. It was also so held in 2001(3)RSJ 15 (SC)- State of Punjab and others Vs. Gurdeep Kumar Uppaland others; 2000(4) RSJ 167 (SC)- State of Haryana Vs. HaryanaVeterinary and A.H.T.S. Asson and another and Civil Appeal No.5947 of 2012 (arising out of SLP © No. 29274 of 2009) State ofHaryana and others Vs. Vijay Singh and others.

As a result of above discussion the writ petition is withoutany merit and is dismissed.

July 8, 2013 (DR.BHARAT BHUSHAN PARSOON)Malik JUDGE