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2013 Supreme(J&K) 736
Jammu & Kashmir High Court
J.P. Singh, Hasnain Massodi, JJ.
Om Raj Gorka - Appellant
Versus
State of Jammu & Kashmir and Others - Respondent
LPASW No. 118 of 2008
Decided On : 01-02-2013
Sunil Sethi, with Mr. Ajaz Mehrab, for the Appellant; Shaista Hakim, Dy. AG, for the Respondent
The adhoc appointment of the appellant, in accordance with the provisions of the Jammu and Kashmir Civil Services Rules, entitles him to the benefit of service rendered while on adhoc service for the purposes of seniority.
Headnote:
Adhoc Appointment - Seniority - The court held that the adhoc appointment of the appellant on the recommendations of the State Recruitment Board, being in accordance with the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, the benefit of service rendered by him while on adhoc service cannot be denied to him for the purposes of seniority.
Fact of the Case:
The appellant was initially engaged as a Daily Wage Sectional Officer and later substantively appointed as Sectional Officer (Civil). He sought directions against the State to allow him service benefits and count his service rendered as a Daily Rated Worker and on adhoc basis for the purposes of seniority.
Finding of the Court:
The court found that the appellant's adhoc service needs to be taken into account for purposes of seniority, and he is entitled to notional service benefits as admissible under rules.
Issues: The issues revolved around the appellant's entitlement to service benefits and the counting of his adhoc service for seniority purposes.
Ratio Decidendi: The adhoc appointment of the appellant, in accordance with the provisions of the Jammu and Kashmir Civil Services Rules, entitles him to the benefit of service rendered while on adhoc service for the purposes of seniority.
Final Decision: The court set aside the judgment and order of the learned Single Judge and allowed the appellant's Writ Petition, issuing directions to the State-respondents to determine his seniority taking into account the adhoc service rendered by him and consequently allow him notional service benefits as admissible under rules.
J.P. Singh, J.—The facts giving rise to this Letters Patent Appeal may be stated thus-
Engaged as Daily Rated Sectional Officer in the Public Works Department of the State Government in the year 1980, the appellant-Om Raj Gorkha was appointed as Sectional Officer (Civil) on adhoc basis vide Government Order No. 22 of 1981 dated 09.01.1981. Pursuant to the selection held for appointment of Sectional Officers (civil), he, along with others, was substantively appointed as such vide Government Order No. PW-114 of 1981 dated 09.03.1981. The post held by him was later re-designated as Junior Engineer Grade-I vide Government Order No. 541-PW (I&PHE) of 1993 dated 01.12.1993 w.e.f. 09.03.1981.
His Representation for allowing 50% service benefits in terms of Circular dated 9.9.1997 and to count Service rendered as Daily Rated Worker and on Adhoc basis for the purposes of seniority, having not been responded to, he approached this Court by his Writ Petition, SWP No. 465/05, seeking directions against the State-respondents to allow him the benefits indicated hereinabove.
2. His Writ Petition was, however, dismissed by a learned Single Judge vide Judgment and order dated 4.6.2008, holding his Claims untenable.
3. He is in Appeal there against.
4. Heard learned counsel for the parties and considered their submissions.
5. The material on records indicates that the appellant was initially engaged as Daily Wage Sectional Officer in the year 1980 in the Public Works Department. With the approval of the State Recruitment Board, he was later engaged as Sectional Officer, on adhoc basis, vide Government Order No. PW-22 of 1981 dated 09.01.1981, for a period of six months or till selection was made.
6. Later, on being selected, he was substantively appointed as Sectional Officer (Civil) vide Government Order No. 114 of 1981 dated 09.03.1981.
7. There is no dispute on facts that the appellant was eligible under rules for engagement as Sectional Officer when pursuant to the agreement conveyed by the State Recruitment Board, a body constituted by the Government for selection of non-gazetted employees, he was engaged as Sectional Officer (Civil) vide Government Order No. 22 of 1981 dated 09.01.1981, on adhoc basis.
8. The adhoc appointment of the appellant on the recommendations of the State Recruitment Board, being in accordance with the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, benefit of service rendered by him while on adhoc service, cannot be denied to him in view of the legal position settled in this behalf by Hon'ble Supreme Court of India in The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others, . The appellant's adhoc service, therefore, needs to be taken into account for purposes of seniority.
9. The view taken by the learned Single Judge that the appellant's Claim for allowing him benefit of adhoc service for the purposes of seniority, was untenable, cannot, therefore, be sustained.
10. The appellant's plea that he was entitled to 50% service benefits in terms of Circular dated 09.09.1997 is, however, found rightly rejected by the learned Single Judge, in that, such benefits are available only to those employees whose services are regularized in terms of SRO 64 of 1994, which had not happened in case of the appellant. He is, therefore, not entitled to the benefit of service rendered as Daily Wager.
11. In view of the above, the judgment and order passed by the learned Single Judge needs to be modified. Accordingly, accepting the Appeal, we set aside the judgment and order dated 04.06.2008 of the learned Single Judge and allow the appellant's Writ Petition issuing directions to the State-respondents to determine his seniority taking into account the adhoc service rendered by him and consequently allow him notional service benefits, as admissible under rules, within ten weeks.
