Heard Shri Avdhesh Shukla, learned counsel for the petitioner, Shri Badrul Hasan, learned Addl. Chief Standing Counsel and perused the record.
Facts as submitted on behalf of the petitioner are that under Settlement Officer of Consolidation (Administration) U.P., Bahraich a class-IV post has fallen vacant due to promotion of one Shri Ram Dayal promoted to the post of Clerk. Shri Ram Dayal Pandey was given promotion on the post of Clerk in view of the vacancy created due to transfer of Shri Khalik Ahmad working on the said post. The petitioner on 4.2.1993 given temporary/ad-hoc appointment on class-IV post.
Thereafter, Shri Khalil Ahmed was transferred and joined on the post of Sr. Clerk as a consequence thereof Shri Ram Dayal Pandey was reverted to the substantive post of Peon. On account of reversion of Shri Ram Dayal Pandey on the post of Peon, the services of the petitioner were terminated by order dated 29.6.1995 (Annexure No.2) passed by opposite party no.2/ Settlement Officer of Consolidation (Administration) U.P., Bahraich.
Aggrieved by the said fact, the petitioner for redressal of his grievances approached this Court by filing Writ Petition No.2188 (SS) of 1995 "Surya Nath Singh vs. Director/Commissioner of Consolidation U.P., Lucknow and Ors.", dismissed by order dated 12.7.1995, relevant portion reproduced herein below:-
"It is expected that after the vacancy is again created on account of retirement of Shri Khalil Ahmad and consequent promotion of Sri Ram Dayal Pandey, the respondents would consider the case of the petitioner for re-employment.
With the above direction, the writ petition is dismissed."
As per version of the petitioner, the post belonging to Class-IV category under opposite party no.2/Settlement Officer of Consolidation (Administration) U.P., Bahraich is lying vacant, but the case of the petitioner has not been considered in spite of the direction given by this Court by order dated 12.7.1995 in Writ Petition No.2188 (SS) of 1995 "Surya Nath Singh vs. Director/Commissioner of Consolidation U.P., Lucknow and Ors.". So, again for redressal of his grievances, he filed Writ Petition No.2855 (SS) of 1999 "Surya Nath Singh vs. Director/Commissioner Consolidation Department, U.P., Lucknow and another. On 9.6.1999, this Court passed an order, relevant portion is quoted herein below:-
"In the meantime, opposite parties are directed to consider the case of the petitioner for re-employment in the existing vacancy as directed by this Court vide judgment and order dated 12.7.1995, passed in W. P. No.2188 (SS) of 1995."
Again in the said matter, on 26.7.2000, this Court has passed an order in Writ Petition No.2855 (SS) of 1999, relevant portion re-produced herein below:-
"The order dated 9.6.1999 is modified to the extent that if there is any vacancy of Class-IV employee, the case of the petitioner for re-employment will be considered by the opposite parties within three weeks from the date of receiving a certified copy of this order is produced."
In pursuance to the said development, the case of the petitioner was considered by opposite party no.2/Settlement Officer of Consolidation (Administration) U.P., Bahraich and rejected by order dated 23.8.2000 stating that no Class- IV post is vacant on which he can be given appointment.
Aggrieved by the said fact, the petitioner filed a Crl. Misc. Case No.769 (C) of 2002 "Surya Nath Singh vs. Sri Kapil Dev and Ors.".
As per pleadings taken by the petitioner, in the contempt matter, the competent authority/Secretary, State of U.P. wrote a letter dated 7.11.2007 (Annexure No.8) to the Commissioner, Consolidation thereby directing him to re-appoint the petitioner. In pursuance to the same, Commissioner, Consolidation wrote a letter dated 8.11.2007 (Annexure No.9) to the Settlement Officer of Consolidation (Administration) U.P., Bahraich, directing him to give re-appointment to the petitioner. As a result of the said fact, by means of the order dated 12.11.2007, the petitioner was given re-appointment on Class-IV post on temporary basis by opposite party no.2/ Settlement Officer of Consolidation (Administration) U.P., Bahraich and in pursuance to the same he joined and started working and discharging his duties.
Thereafter, the petitioner submitted a representation to the opposite party no.2 with a prayer that the service rendered by him from 4.2.1993 shall be counted in his service book as having been re-employed and grant him consequential service benefits, but no heed has been paid in this regard. Hence, the present writ petition has been filed by the petitioner with the following main prayer:-
"a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties to count the service of the petitioner from 4.2.1993 treating him as having been re-employed and grant him consequential service benefits accordingly."
Shri Avdhesh Shukla, learned counsel for the petitioner while pressing the relief as claimed by the petitioner argued that it is obligatory on the part of the opposite party no.2 to count the services rendered by the petitioner from 4.2.1993 and grant him consequential service benefits because in the present case the petitioner has spent period in the service from 4.2.1993 to 29.6.1995 in the department the said period shall be counted for consequential service benefits and the same may be given to him.
Learned counsel for the petitioner further submits that the action on the part of the opposite party no.2 thereby not counting the service period from 4.2.1993 to 29.6.1995 rendered by him and not calculating other consequential service benefit is illegal, thus, vioative of Article 14 of the Constitution of India as well as law laid down by Hon'ble the Apex Court in the case of Food Corporation of India Workers' Union vs. Food Corporation of India and Another (2001) 9 Supreme Court Cases 64, liable to be set aside.
Shri Badrur Hasan, learned Addl. Chief Standing Counsel submits that in the present case, the petitioner was given temporary/adhoc appointment on 4.2.1993 on the post of Peon (Class-IV) fallen vacant due to promotion of one Shri Ram Dayal Pandey. Thereafter, as Sri Ram Dayal Pandey was reverted on the post of Peon, so the services of the petitioner were terminated, as such, the said period cannot be counted for the service benefit of the petitioner in view of the fact that he was re-appointed in the department by order dated 12.11.2007 as per law laid down by Hon'ble the Apex Court in the case of Central Council For Research in Homeopathy vs. Bipin Chandra Lakhera and Ors. (2011) 2 UPLBEC 1499, hence, the writ petition is liable to be dismissed.
I have heard learned counsel for the parties and gone through the records.
In order to decide the controversy involved in the present case, it is appropriate to find out the meaning of word "re-employment".
In P. Ramanatha Aiyar's The Law Lexicon 2nd Edition, the word "re-employment" has been assigned the following meaning:-
"Re-employment is different from retention in service. Retention in service means continued employment in the service in which the employee has been serving, is a quite different thing from re-employment of an employee after he has retired."
The word "re-employment" is defined In Words and Phrases Permanent Edition Volume 36B as under:-
"Mich. 1902. Where plaintiff, while in defendant's employ as a spare brakeman, was injured, and, on recovery, entered into a written contract whereby, in consideration of his re-employment for such time as his services and conduct should be satisfactory, he released all claims for damages, the term "re-employment" means the same service in which he was formerly employed."
Calcutta High Court in the case of Basanta Kumar Pal vs. Chief Electrical Engineer and others AIR 1958 CALCUTTA 657 while interpreting the word re-employment has held that retention in service, which means continued employment in the service in which an employee has been serving is quite a different thing from re-employment of an employee after he has retired. Consequently, a decision not to re-employ is very different from a decision not to retain.
Hon'ble the Apex Court in the case of Provident Fund Inspector, Trivandrum vs. The Secretary, N. S. S. Co-operative Society, Changanacherry 1970 (1) Supreme Court Cases 50 has interpreted the word re-employment in paragraph no.4 has held as under:-
"Significance attaches to the word "re-employed" which implies that there was no continuity of employment."
Moreover, the word 're' when used as a prefix normally means "again" or "back". 'Re-employment' therefore means taken back to service or taken again into service.
Further, in the matter in question it is also necessary to know the meaning of regular/regular services. In law Lexicon the expression 'regular and 'regular services' have been assigned meanings at page 1638-1639 as under:-
"Regular - Webseter defines "regular" to mean conformable to a rule; methodical; periodical.
"REGULAR" is derived from "regular", meaning "rule" and its first and legitimate signification, according to Webster, is "conformable to a rule' agreeable to an established rule, law, or principle, to a prescribed mode, or according to established, customary forms."
Regular - Conformable to rule; periodical; recurring or repeated at fixed times or uniform intervals; properly constituted; normal; marked by steadiness or uniformity of action, procedure or occurrence.
Regular services - The expression 'regular forces' mean officers and soldiers who by their commission, terms of enlistment, or otherwise are liable to render continuously for a term military service to His majesty in every part of the world or in any specified part of the world. R.V.Governor of Wormwood Scrubbs Prison, (1948) 1 All ER 438, 441 (KBD). [Army Act. S. 190 (8)]".
From a bare reading of the dictionary meaning of aforesaid expressions, it appears that expression reappointment/re-employed has been assigned meanings, taken back into service or taken again into service. Further so as to enable the court to come to a definite conclusion, the proper course in such cases is to search out and follow the true intent of the legislature and to adopt that sense of the word which harmonises best with the context and advance the object of the legislature. While determining as to the meaning of particular word in a particular statute it is, therefore, permissible to consider two aspects; viz (I) the external evidence derived from the circumstances such as previous legislation and decided cases and (II) internal evidence derived from the statute itself.
Thus, words used in the statute cannot be treated to be surplus and superfluous without any meaning being assigned to it. It is also well settled rule of construction of statute that unless it is unavoidable a construction renders a provision superfluous must be rejected. Statutory enactment must ordinarily be construed according to plain and natural meaning of its language and no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with rest of the statute.
Further, the expression 'regular service' must be given different meaning from "mere continuous uninterrupted service". It should not be equated with the continuous service, further the expression 'regular service' should also not be equated with the services rendered by adhoc appointee as in that event of the matter, there would have been no occasion for the rule making authority to use the expression 'regular service' instead of merely using the expression 'continuous service'. This view does neither lead to any anomalous result nor lead to any absurdity and also finds support from the decision rendered by Hon'ble Apex Court in State of Haryana Vs. Haryana Veterinary and A.H.T.S. Association's 2000 (8) SCC 4.
In the case of State of Rajasthan and others Vs. Jagdish Narain Chaturvedi, reported in (2009) 12 SCC-49, the Apex Court while dealing the question relating to promotion has dealt the word "regular". The Apex Court has held that promotion has to be amongst the persons, who are borne on a regular cadre in service. The service rendered on ad hoc, daily wages or work-charged basis, prior to being borne on a cadre in service, does not count for the purpose of determining the eligibility for promotion. The initial appointment might have been against a post but appointment being on ad hoc, daily wages and work-charged basis, persons so appointed were not borne 0n a cadre until their regularisation and, therefore, service rendered prior to regularisation could not count for eligibility.
Again Hon'ble Apex Court in the case of State of Punjab Vs. Ashwani Kumar AIR 2009 SC 186, has taken note of the aforesaid judgment and held as follows: Paragraphs 2 to 6 are being extracted:
"Challenge in this appeal is to the order passed by a Division Bench of the Punjab and Haryana High Court holding that the ad-hoc services of the respondents were to be counted for the purpose of seniority. Reliance was placed on certain other orders of the High Courts passed earlier. It is stated by learned counsel for the appellants that this Court had occasion to deal with the appeals filed by the State questioning correctness of the judgments on which reliance has been placed by the High Court. Respondents were initially appointed during the period 1978 to 1987 as Clerks on ad-hoc basis and were regularized between the period from 1980 to 1990. Respondents submitted representations claiming the benefit of their ad-hoc services relying on the judgment to which reference has been made by the High Court in the impugned judgment. Prayer was to the effect that the ad-hoc service was to be counted for all intents and purposes including seniority.
The main question that arises for consideration in this appeal is whether the period of ad-hoc services rendered by the respondents is to be included for calculating the seniority. This question was considered by a three-Judge Bench of this Court in State of Haryana v. Haryana Veterinary & AHTS Association and Anr. (2000 (8) SCC 4) wherein this Court took the view that for calculating 8/18 years service required for giving higher scale of pay and for determination of seniority only regular service rendered by the employee is to be counted and not ad-hoc service.
Learned counsel for the respondents strenuously contended that the respondents who are Clerks serving under the State of Punjab are governed by a set of Rules and circulars different from those which were considered in the decided case and, therefore, the ratio in that case will not be applicable in these cases. We have carefully considered the said contention. We have also considered the Government Letter No.4/8/85-3PPI/4408 dated 13.3.1996 containing the policy instructions. On a plain reading of the letter, it is clear that the instructions contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad-hoc service should be taken into account for the purpose. This letter in our view can no longer form the basis of the contention in view of the recent decision by this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra). Undisputedly, the respondents at the time of their appointment were governed by the Punjab Civil Services (General and Common Conditions of service) Rules, 1994. In Rule 8 of the said Rules it is provided that the seniority of the persons appointed on purely provisional basis or on ad-hoc basis shall be determined as and when they are regularly appointed keeping in view the date of such regular appointment. Further, in the orders appointing the respondents on ad-hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. It was further stated in paragraph III of the appointment letter that the appointees' seniority will be determined only by merit in which he or she is placed by Punjab Public Service Commission. Thus it is clear that only regular service is to be counted towards seniority.
We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra). We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the judgment/order passed by the High Court holding that ad- hoc service is to be included in calculating the period of service for giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgment/order of the High Court under challenge is set aside."
Hon'ble the Apex Court in the case of Central Council For Research in Homeopathy vs. Bipin Chandra Lakhera and Ors. (2011) 2 UPLBEC 1499 in paragraph 9 held as under:-
"It has been held by this Court in Ch. Narayana Rao vs. Union of India and Others, (2010) 10 SCC 247, and State of West Bengal and others vs. Aghore Nath Dev and others, (1993) 3 SCC 371, that ad hoc service before regularization cannot be counted for seniority."
Now reverting to the admitted facts and circumstance of the present case that for the period of 4.2.1993 to 29.6.1995, the petitioner was given appointment due to promotion of one Shri Ram Dayal Pandey on the post of Clerk, but when the said person was reverted back to the substantive post of Peon, the services of the petitioner were terminated.
Thereafter, as per direction given by this Court re-employment has been given to the petitioner by the opposite party no.2/ Settlement Officer of Consolidation (Administration) U.P., Bahraich vide order dated 12.11.2007, so the services rendered by him prior to the said period even in any capacity can not be counted for the purpose of service benefits.
So far as the reliance placed by learned counsel for the petitioner in the case of Food Corporation of India Workers' Union vs. Food Corporation of India and Another (2001) 9 Supreme Court Cases 64 is concerned, the same is not applicable to the facts and circumstance of the present case, because in the said matter by order dated 16.7.1996 passed in Civil Appeal No.9182 of 1996 a direction was given in regard to reinstatement of the workmen who had been retrenched for identification and reinstatement and for certain incidental reliefs. However, the said workman has not been re-instated and died. Thereafter, in the said matter, the Hon'ble Supreme Court has granted relief to the legal representative/kith and kin of the deceased workman on the ground that Food Corporation of India/employer had not re-instated the workman in spite of the order passed by Hon'ble the Supreme Court, as such, the petitioner cannot drive any benefit from the judgment in the present matter.
For the foregoing reasons, in the present case, the relief as claimed by the petitioner cannot be granted.
In the result, the writ petition lacks merit and is dismissed.
Order Date :-23.5.2012 Mahesh