REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5947 OF 2012
(Arising out of SLP (C) No. 29274 of 2009)
State of Haryana and others … Appellants
Versus
Vijay Singh and others … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. On being selected by the District Level Committee which had
considered the candidature of those sponsored by the Employment Exchanges,
respondent Nos.1 to 13 were appointed as Masters in the subjects of
Science, Maths and Social Studies, respondent No.14 was appointed as
Physical Training Instructor and respondent No.15 was appointed as Hindi
Teacher purely on ad hoc basis between 1994 and 1996 by the District
Education Officers. The relevant portions of one such order issued on
16.10.1995 are reproduced below:
“OFFICE OF THE DISTT. EDUCATION OFFICER, PANIPAT
Order No.E-1/95/3515-65 Dated Panipat 16.10.1995
On the recommendation of the Distt. Level Committee, the
following candidates are hereby appointed purely on ad hoc basis as
Master/Mistresses in the subject noted against them in the Haryana
Education Service Non Gazetted Class II (School cadre) Men/Women branch
(as the case may be) w.e.f. the they join their duty in the institution
indicated against their names in the grade of Rs.1400-2600 plus usual
allowances sanctioned by the Haryana Government from time to time on the
following terms and conditions:-
|Sl.No |Name and address of |Place of |Remarks |
| |the candidate |posting | |
S.S. Master (Male), General Category
|1 to 3 |xxxxxx |xxxxxxx |xxxxxxx |
S,S. Master (Male) B.C. Category
|1. |xxxxxx |xxxxxxx |xxxxxxx |
S,S. Master, S.C. Category (Male) Block A
|1. |xxxxxx |xxxxxxx |xxxxxxx |
S,S. Master, Block B
|2. |xxxxxx |xxxxxxx |xxxxxxx |
S,S. Master Male, ESM
|1 & 2. |xxxxxx |xxxxxxx |xxxxxxx |
S,S. Mistress General Category
|1 to 3 |xxxxxx |xxxxxxx |xxxxxxx |
S,S. Mistress Category Scheduled Caste, Block A.
|1. |xxxxxx |xxxxxxx |xxxxxxx |
Science Master Male General Category
|1. |Vijay Singh s/o |G.S.S.S. Mandi |Against |
| |Om Parkash V.P.O.| |vacancy |
| |Palri (Panipat) | | |
|2&3 |xxxxxxx |xxxxxxx |xxxxxxx |
Science Mistress General Category
|1 & 2. |xxxxxx |xxxxxxx |xxxxxxx |
Math Master General Category Male
|1 and 2. |xxxxxx |xxxxxxx |xxxxxxx |
Math Mistress General Category
|1 |xxxxxx |xxxxxxx |xxxxxxx |
Terms & Conditions:
1. The above appointments are purely on ad hoc basis for six months
or till the candidates are available for regular appointment
whichever is earlier. Their services are liable to be terminated
without assigning any reason or notice at any time.
2 to 6 xx xx xx xx”
3. In furtherance of the policy decision taken by the State Government
in the light of the judgment of the High Court in Hassan Mohd. v. State of
Haryana 2004 (2) SCT 505, the services of the respondents were regularized
w.e.f. 1.10.2003. The opening paragraph and clause 5 of the terms and
conditions embodied in order dated 3.8.2004/12.8.2004 passed by the
Director, Secondary Education, Haryana for regularization of a number of
employees of District Ambala including respondent No.12 Prem Kumar are
extracted below:
“OFFICE OF THE DIRECTOR SECONDARY EDUCATION HARYANA
CHANDIGARH
ORDER No. 2/4-2004-E-V (5) DATED CHANDIGARH THE
03.08.2004
In pursuance of the decision contained in the Haryana Govt.
letter No.6/9/03-IGS-I dated 03.10.2003, the following Master/Mistress
who were appointed on ad hoc/contractual basis and have completed
three years service upto 30.09.2003 and were in service on that date
are hereby appointed as officiating Masters/Mistress in HES-III School
Cadre (Men's Branch) in the grade of Rs.5500-9000 (pre-revised) plus
usual allowances as sanctioned by the Haryana Government from time to
time w.e.f. 01.10.2003 and posted at present place against vacant
posts as per following terms and conditions:-
|Sr. No.|Name of the office and present|Date of |
| |place of posting |appointment |
Sh/Smt. Masters /Mistress Distt. Ambala
1. to 16. xxxxx xxxxxx xxxxx
Sh/Smt. Master/Mistress Distt. Ambala.
17. to l9 xxxxxxx xxxxxx xxxxx
20. Prem Kumar, GHS Kalpi 01.03.1995
21. to 27. xxxxx xxxxxx
Sh/Smt. Science Master /Mistress Distt. Ambala.
29. to 38. xxxxxxx xxxxxx
1 to 4 xx xx xx
5. They are put on probation for a period of two years in the first
instance from the date he joined his duty. His result will be
particularly taken into consideration while assessing his performance,
if in the option of the appointing authority his work and conduct has
not been found satisfactory during probation period, this period is
liable to be extended provided that the total period of probation
including extension, if any, shall exceed 3 years or his service will
be dispensed with.
6 to 9 xx xx xx”
4. After regularization of their services, the respondents submitted
representations through their association and claimed that the period of ad-
hoc service should be counted towards seniority because they were recruited
on the basis of selection made by the District Selection Committee from
among the candidates sponsored by the Employment Exchanges. The department
did not accept their plea and in the provisional gradation list of the
Haryana Education Service Class III, their names were shown below those who
were appointed on regular basis prior to 1.10.2003.
5. The respondents challenged the provisional gradation list in Civil
Writ Petition No.2409/2008 on the ground that the same was discriminatory
and prayed that in view of the judgment of this Court in Direct Recruit
Class II Engineering Officers’ Association v. State of Maharashtra and
others (1990) 2 SCC 715, their seniority be fixed by taking into
consideration the total length of service including the ad-hoc service, and
until then, no one should be promoted to the post of lecturer.
6. In the written statement filed on behalf of the appellants, it was
pleaded that the Provisional Gradation List was prepared in accordance with
Rule 11 of the Haryana State Education School Cadre (Group ‘C’) Service
Rules, 1998 (for short, ‘the 1998 Rules’) and the service rendered by the
respondents before regularization cannot be taken into consideration for
the purpose of fixation of seniority.
7. The Division Bench of the High Court relied upon the judgments in
Direct Recruit Class II Engineering Officers’ Association v. State of
Maharashtra and others (supra), Dr.Chandra Prakash v. State of U.P. (2002)
10 SCC 710, and order dated 4.7.2008 passed in C.W.P.No.7862/2006, Hanumant
Singh vs. State of Haryana and others, and declared that the seniority of
the respondents be fixed by taking into account their ad hoc service and,
accordingly, they should be considered for promotion to the posts of
lecturer.
8. Shri Neeraj Jain, learned senior counsel for the appellants referred
to the provisions of the Punjab Educational Service, Class III, School
Cadre Rules, 1955 (for short, ‘the 1955 Rules’), as applicable to the State
of Haryana, the 1998 Rules, Notification dated 28.1.1970 issued by the
Governor of Haryana under Article 309 of the Constitution for creation of
the Subordinate Services Selection Board (for short, ‘the Board’) as also
Notification dated 29.6.1973, by which Clause 6 of the earlier notification
was substituted, and argued that even though the respondents were appointed
as Masters in different subjects and Physical Training Instructor and Hindi
Teacher against the sanctioned posts after being sponsored by Employment
Exchanges and on being recommended by the District Selection Committee,
their seniority cannot be fixed on the basis of total length of service
because their appointments were purely ad hoc and were subject to the
availability of the candidates selected for regular appointment. Shri Jain
pointed out that under the 1955 Rules, the Director of Education and not
the District Education Officer was competent to make appointment on the
posts of Masters and argued that the services rendered by the respondents
on the basis of ad hoc appointments made by the District Education Officers
cannot be clubbed with post regularization service for the purpose of
determination of seniority. Learned senior counsel further argued that
initial appointments of the respondents cannot be treated as regular
because the same were not made on the recommendations of the Board
constituted vide Notification dated 28.1.1970. Shri Jain pointed out that
under the 1998 Rules also the appointing authority for the posts of
Masters/Mistresses is the Joint Director of Schools and not the District
Education Officer and argued that the High Court committed serious error by
directing fixation of the seniority of the respondents by counting their ad
hoc service ignoring that their initial appointments were not made by the
competent authority on the recommendations of the Board.
9. Shri P.S. Patwalia, learned senior counsel for the respondents
supported the direction given by the High Court and argued that the
respondents are entitled to have their seniority fixed on the basis of
total length of service because they were initially appointed after
following the procedure prescribed for regular recruitment. Shri Patwalia
emphasized that the posts against which the respondents were appointed
between 1994 and 1996 were duly sanctioned and the appointments were made
by the District Education Officers from among the candidates who were
sponsored by the Employment Exchanges and whose names were recommended by
the District Selection Committees. Learned senior counsel argued that the
use of phrase ‘ad hoc’ in the orders issued by the District Education
Officers is not conclusive and the High Court rightly treated the
respondents’ initial appointment as regular for the purpose of fixation of
seniority. Shri Patwalia relied upon the principles laid down by the
Constitution Bench in Direct Recruit Class II Engineering Officers’
Association v. State of Maharashtra and others (supra), and the judgments
in State of West Bengal v. Aghore Nath (1993) 3 SCC 371, M.K. Shanmugan v.
U.O.I. (2000) 4 SCC 476, Rudra Kumar Sain and others v. Union of India &
others, (2000) 8 SCC 25, Dr. Chandra Prakash v. State of U.P. (supra) and
S. Sumyan and others v. Limi Niri & others, (2010) 6 SCC 791, and argued
that once the ad hoc appointments of the respondents were regularized,
there could be no justification to exclude their past service for the
purpose of fixation of seniority.
10. We have considered the respective submissions. Rules 2(a), (e), 3, 8
and 9 of the 1955 Rules, which were applicable to the State of Haryana till
the enactment of the 1998 Rules, Rules 6, 10 and 11 of the 1998 Rules and
the relevant extracts of Notifications dated 28.1.1970 and 29.6.1973 issued
by the Governor of Haryana under Article 309 of the Constitution, which
have bearing on the decision of this appeal, are reproduced below:
THE 1955 RULES
“2 (a) “The Director” means the Director of Public Instruction,
Punjab for the time being.
(e) “Direct appointment” means an appointment made otherwise with by
promotion within the service or by transfer of an official serving in
another department of any State in India or the Government of India.
3. Authority competent to make appointment: - All appointments to
posts in the service shall be made by the Director except that
Divisional Inspector / Inspectorass of School or the Principals of
Government Colleges may make any temporary or officiating appointment
to a post other than that of the Headmaster or Headmistress or an
Assistant District Inspector of Schools i.e., for a period not
exceeding three months of any time.
8. Probation: - i) Members of the service, who are recruited
directly against permanent vacancies shall be on probation in the
first instance for one year.
ii) Approved officiating service shall be reckoned as period
spent on probation, but no member who has officiated in any
appointment for one year, may claim to be confirmed until he is
appointed against a permanent vacancy.
iii) On the completion of the period of probation the Director
may confirm the member in his / her appointment or if his / her
work or conduct during the period of probation has been in his
opinion unsatisfactory, he / she may dispense with his / her
service or may extend his / her period of probation by such
period as he may think fit, or reverse him / her to his her
former post, if he / she has been recruited otherwise than by
direct appointment, provided that the total period of probation
including extensions, if any, shall not exceed three years.
iv) Services spent on deputation to a corresponding or higher
post may be allowed to count towards the period of probation
fixed under this rule, if there is a permanent vacancy against
which such member can be confirmed.
9. Seniority of members of the services: - The Seniority inter se
of members of the services holding the same class of posts and in the
same/identical grades of pay shall be determined by the dates of their
confirmations in such posts provided that, if two or more members are
confirmed in the same class or post and in the same grades of pay on
the same date, their seniority shall be determined as follows:-
a) A member appointed by promotion within the service shall
be considered senior to member appointed otherwise.
b) A member appointed by transfer from another department of
any Government of India shall be senior to a member recruited by
direct appointment.
c) In the case of members who are appointed by promotion,
seniority shall be determined according to the seniority in the
appointment last held.
d) In the case of members who are recruited by transfers from
other services or posts in Education Department of Government or
any other Department of any government in India, seniority shall
be determined according to seniority in the appointments
previously held in the cadre of that service.
e) In the case of members who were both or all recruited by
direct appointment and shall be determined according to the
seniority before appointment and if their appointments were made
on the same date, then older members shall be senior to a
younger member.
f) In the case of members, who are recruited by transfer from
different departments, seniority shall be determined according
to the scale pay preference being given to a member who was
drawing a higher rate or pay in his previous appointment and if
the rate of scale of pay drawn is the same, an older member
shall be senior to a younger one.”
****
THE 1998 RULES
“6(1) Appointments to the posts in the Service in case of Middle
School Headmaster, Social Studies Master, Science Master, Mathematics
Master, Agriculture Master, Commerce Master, Demonstrator in Physical
Education (P.T. Master), Home Science Master, Art Master and Music
Master shall be made by Joint Director Schools.
(2) Appointments to the posts in the Service in case of Sanskrit
Teacher, Hindi Teacher, Punjabi Teacher, Physical Training Instructor,
Art and Craft Teacher (Drawing Teacher), Tailoring Teacher and Tabla
Player shall be made by the respective District Education Officers of
the concerned district.
10 (1) Persons appointed to any post in the Service shall remain on
probation for a period of two years, if appointed by direct
recruitment, and one year if appointed otherwise, --
Provided that:-
(a) any period, after such appointment, spent on deputation on a
corresponding or a higher post shall count towards the period of
probation;
(b) any period of work in equivalent or higher rank, prior to
appointment to any post in the Service, may, in the case of an
appointment by transfer, at the direction of the appointing authority,
be allowed to count towards the period of probation fixed under this
rule; and
(c) any period of officiating appointment shall be reckoned as period
spent on probation, but no person who has so officiated shall, on the
completion of the prescribed period of probation; be entitled to be
confirmed, unless he is appointed against a permanent vacancy.
(2) If, in the opinion of the appointing authority, the work or
conduct of a person during the period of probation is not
satisfactory, it may,
(a) If such person is appointed by direct recruitment, dispense with
the services; and
(b) If such person is appointed otherwise, than by direct recruitment,
-
(i) revert him to his former post; or
(ii) deal with him in such other manner as the terms and conditions of
his previous appointment permit.
(3) On the completion of period of probation of a person, the
appointing authority may:-
(a) if his work or conduct has, in its opinion, been satisfactory,-
(i) confirm such person from the date of his appointment, if appointed
against a permanent vacancy; or
(ii) confirm such person from the date from which a permanent
vacancy occurs, if appointed against a temporary vacancy; or
(iii) declare that he has completed his probation satisfactorily, if
there is no permanent vacancy; or
(b) if his work or conduct has, in its opinion, been not satisfactory:-
(i) dispense with his service, if appointed by direct recruitment, if
appointed otherwise, revert him to his former post or deal with him in
such other manner as the terms and conditions of
his previous appointment permit; or
(ii) extend his period of probation and thereafter pass such order, as
it could have passed on the expiry of the first period of probation;
Provided that the total period of probation including extension, if
any, shall not exceed three years.
11. Seniority, interse of the members of the service, shall be
determined by the length of continuous service on any post in the
service
Provided that where there are different cadres in the Service, the
seniority shall be determined separately for each cadre;
Provided further that in the case of member appointed by direct
recruitment, the order of merit determined by the Commission or any
other recruiting authority as the case may be, shall not be disturbed
in fixing the seniority;
Provided further that in the case of two or more members appointed on
the same date, their seniority shall be determined as follows:-
(a) a member appointed by direct recruitment shall be senior to member
appointed by promotion or by transfer;
(b) a member appointed by promotion shall be senior to a member
appointed by transfer.
(c) in the case of a member appointed by promotion or by transfer,
seniority shall be determined according to the seniority of such
members in the appointment from which they are promoted or
transferred; and
(d) in the case of members appointed by transfer from different
cadres, their seniority shall be determined according to pay,
preference being given to a member, who was drawing a higher rate of
pay in his previous appointment, and if the rates of pay drawn are
also the same, then by the length of their service in the appointments
and if the length of such service is also same, the older member shall
be senior to the younger member.”
NOTIFICATION DATED 28.01.1970
“GENERAL ADMINISTRATION DEPARTMENT
GENERAL SERVICES
NOTIFICATION
The 28th January, 1970
No.523-3GS-70/2068.—In exercise of the powers conferred by
Article 309 of the Constitution of India, and in modification of all
other rules in this behalf, the Governor of Haryana hereby
constitutes, with effect from the date of the publication of this
notification, Subordinate Services Selection Board. The constitution
of the Board, the terms and conditions of service of the members
thereof and its functions shall be as follows:
6. Functions :- All appointments to non-gazetted Class III posts
under the Haryana Government, except appointments of officers and
employees of the Punjab and Haryana High Court provided for in Article
229 of the Constitution of India, shall be made on the advice of the
Board.
Provided that the State Government shall be competent to exclude any
such posts from the purview of the Board.”
NOTIFICATION DATED 29.06.1973
“PART-III
HARYANA GOVERNMENT
GENERAL ADMINISTRATION DEPARTMENT
Notification
The 29th June, 1973
No. G.S.R.88/Const./Art.309/73.— In exercise of the powers
conferred by article 309 of the Constitution of India, and all other
powers enabling him in this behalf, the Governor of Haryana hereby
makes further amendment in the Haryana Government, General
Administration Department, General Services, Notification No.523-3GS-
70/2068, dated the 28th January, 1970.
In the said notification, for para 6, the following para shall
be substituted, namely:-
“6. Functions:- The Board shall be consulted on the following
matters:-
a) appointments to Class III posts under the State Government, except
appointments of officers and employees of the Punjab and Haryana
High Court provided for in article 229 of the Constitution of
India;
b) promotions and transfers from one service or post to another
service or post pertaining to Class III and Class IV posts;
c) disciplinary matters pertaining to Class III and Class IV
Government employees;
d) methods of recruitment and the principles to be followed in making
appointments to Class III and Class IV posts under the State
Government; and
e) appointments to posts carrying an initial pay of not less than one
hundred and fifty rupees per mensem and not more than three hundred
and fifty rupees per mensem under a Municipal Committee, Notified
Area Committee, Town Improvement Trust, Zila Parishad or Panchayat
Samiti except appointment of the Excecutive Officer of a Municipal
(Executive Officers) Act, 1931, or the Patiala Municipal (Executive
Officers) Act, 2003 Bk.:
Provided that it shall not be necessary to consult the Board in
respect of such posts and matters as the State Government may by
notification, specify.”
11. It is not in dispute that till the framing of the 1998 Rules,
appointments to the posts of Masters and Teachers were governed by the 1955
Rules. In terms of Rule 3 of the 1955 Rules, all appointments to posts in
the service were required to be made by the Director with the exception
that the Divisional Inspector/Inspectorass of the School and Principals of
Government Colleges could make temporary or officiating appointment to a
post other than that of the Headmaster or Headmistress or an Assistant
District Inspector of Schools and the tenure of such appointment could not
exceed three months. In terms of Rule 8 of the 1955 Rules, a person
appointed by direct appointment was required to be placed on probation for
one year in the first instance and on completion of the period of
probation, the Director could confirm the probationer. If the work or
conduct of the probationer was found unsatisfactory, the Director could
either terminate his/her service or extend the period of probation upto a
maximum period of three years. Clause 2 of Rule 8 postulated counting of
officiating service as period spent on probation. The basic criteria for
fixation of seniority embodied in Rule 9 was the date of confirmation.
12. Rule 6(1) of the 1998 Rules lays down that the Joint Director,
Schools shall be competent to make appointment to the posts of Middle
School Headmaster, Social Studies Master, Science Master, Mathematics
Master, Agriculture Master, Commerce Master, Demonstrator in Physical
Education (P.T. Master), Home Science Master, Art Master and Music Master.
Sub-rule (2) of Rule 6 postulates appointment on the posts of Sanskrit,
Hindi and Punjabi Teacher, Physical Training Instructor, Art and Craft
Teacher (Drawing Teacher), Tailoring Teacher and Tabla Player by the
concerned District Education Officers. Rule 10 of the 1998 Rules is
substantially similar to Rule 8 of the 1955 Rules and lays down that any
person appointed by direct recruitment shall remain on probation for a
period of 2 years which can be extended upto a maximum of three years. On
satisfactory completion of the period of probation, the appointing
authority could confirm such person from the date of occurrence of
permanent vacancy and if there was no such vacancy then grant a declaration
that the appointee has satisfactorily completed the period of probation.
Rule 11 lays down that seniority inter se of the members of service shall
be determined by the length of continuous service. Third proviso to this
rule and Clauses (a) to (d) of that proviso regulate the fixation of
seniority in different eventualities.
13. An analysis of Notification dated 28.1.1970 shows that the Governor
of Haryana had, in exercise of the powers conferred upon him by Article
309, constituted the Board. The primary function of the Board is to give
advice in the matter of appointment to all non-Gazetted Class III posts
under the State Government. By Notification dated 29.6.1973, the scope of
the Board’s functions was enlarged and consultation with the Board was made
mandatory in the matters of promotion to Class III posts under the State
Government; promotions and transfers from one service or post to another
service or post pertaining to Class III and Class IV, disciplinary matters
pertaining to Class III and Class IV employees, methods of recruitment and
the principles to be followed in making appointments to Class III and Class
IV posts, etc. By virtue of proviso to the amended Clause 6, the State
Government is empowered to issue notification to dispense with the
requirement of consultation with the Board in respect of such posts and
matters as may be specified therein.
14. We shall now consider whether the respondents were regularly
appointed as Masters, Physical Training Instructor and Hindi Teacher
between 1994 and 1996, whether the competent authority should have taken
into consideration their total length of service for the purpose of
fixation of seniority and whether the High Court rightly applied the ratio
of the judgments of this Court in Direct Recruit Class II Engineering
Officers’ Association v. State of Maharashtra (supra) and Dr. Chandra
Prakash v. State of U.P. (supra) for the purpose of directing refixation of
the respondents’ seniority.
15. A reading of order dated 16.10.1995 issued by District Education
Officer, Panipat makes it crystal clear that even though respondent No.1 –
Vijay Singh was appointed as Science Master on the recommendations of the
District Level Committee, his appointment was purely ad hoc with a tenure
of six months or till the availability of a candidate for regular
appointment, whichever was earlier. The other respondents were appointed
in the same manner with similar stipulation. The reason why the
respondents were appointed on purely ad-hoc basis is not far to seek. The
concerned District Education Officers did send requisitions to the
Employment Exchanges and appointments were made on the recommendations of
the District Level Committee but all this was not in consonance with the
mandate of the 1955 Rules and Notifications dated 28.1.1970 and 29.6.1973.
At the cost of repetition, we deem it proper to mention that in terms of
Rule 3 of the 1955 Rules, only the Director was competent to make
appointments on the posts to which those rules were applicable with the
exception that Divisional Inspector/Inspectorass of School or the
Principals of Government Colleges could make temporary or officiating
appointments on certain posts for a maximum period of three months. After
the Board was constituted vide Notification dated 28.1.1970, the Director
could make appointment only on the recommendation of the Board unless the
State Government was to issue notification under proviso to Clause 6 of
Notification dated 29.6.1973. In terms of Rule 8 of the 1955
Rules, every person appointed by direct recruitment was required to be
placed on probation for a period of one year. The respondents were neither
appointed by the Director on the recommendations of the Board nor they were
placed on probation. As a matter of fact, they were appointed on purely ad
hoc basis without following the procedure prescribed for regular
appointment. Therefore, the mere fact that the ad hoc appointments of the
respondents were preceded by sending requisitions to the Employment
Exchanges and recommendations by the District Selection Committee cannot
lead to an inference that they were appointed on regular basis.
16. It was neither the pleaded case of the respondents nor any document
was produced before the High Court to show that the State Government had
amended the 1955 Rules and empowered the District Education Officer to make
appointment on the posts of Masters, Physical Training Instructor and Hindi
Teacher or the requirement of consultation with the Board was dispensed
with by issuing notification under proviso to Clause 6 of Notification
dated 29.6.1973. Unfortunately, the High Court overlooked the fact that
the respondents were neither appointed by the competent authority on the
recommendations made by the Board nor they were placed on probation.
Therefore, the conclusion recorded by the High Court that the respondents’
initial appointments were regular and, therefore, ad hoc service was liable
to be counted for the purpose of fixation of seniority is legally
unsustainable.
17. The issue relating to fixation of seniority deserves to be considered
from another angle. In terms of Rule 9 of the 1955 Rules, the seniority
inter se of members of the service holding the same class of posts and in
the same/identical grades of pay is required to be determined by the dates
of their confirmation. Rule 11 of the 1998 Rules lays down that seniority
inter se of members of the service shall be determined by the length of
continuous service on any post. The respondents were appointed on purely
ad hoc basis for six months and they continued to serve as ad hoc Masters,
Physical Training Instructor and Hindi Teacher till the regularization of
their service w.e.f. 1.10.2003. Therefore, their seniority could not be
fixed either under Rule 9 of the 1955 Rules or Rule 11 of the 1998 Rules by
counting their service from the date of initial appointments.
18. Before concluding, we consider it proper to notice the judgments on
which reliance has been placed by learned counsel for the respondents.
This consideration needs to be prefaced with an observation that the cases
in which recruitment and conditions of service including seniority are
regulated by the law enacted by Parliament or the State Legislature or the
rules framed under Article 309 of the Constitution, the general proposition
laid down in any judgment cannot be applied de hors the relevant statutory
provisions and dispute relating to seniority has to be resolved keeping in
view such provisions.
19. In Direct Recruit Class II Engineering Officers’ Association v. State
of Maharashtra & others (supra), the Constitution Bench considered the
dispute of seniority between the direct recruits and the promotees in the
light of the provisions contained in the Bombay Service of Engineers (Class
I and Class II) Recruitment Rules, 1960, the Bombay Service of Engineers
(Class I and Class II) Recruitment Rules, 1970, the Reorganised Bombay
State Overseers and Deputy Engineers Seniority Lists Rules, 1978, the
Reorganised Bombay State Assistant Engineers and Executive Engineers
Seniority Lists Rules, 1981, the Maharashtra Service of Engineers
(Regulation of Seniority and Preparation and Revision of Seniority Lists
for Specified Period) Rules, 1982, etc. After examining the relevant
rules, the Court culled out the following propositions:
“(A) Once an incumbent is appointed to a post according to rule, his
seniority has to be counted from the date of his appointment and not
according to the date of his confirmation.
The corollary of 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 for considering the seniority.
(B) If the initial appointment is not made by following
the procedure laid down by the rules but the appointee
continues in the post uninterruptedly till the regularisation of his
service in accordance with the rules, the period of officiating
service will be counted.
(C) When appointments are made from more than one source, it is
permissible to fix the ratio for recruitment from the different
sources, and if rules are framed in this regard they must ordinarily
be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it
should be substituted by an appropriate rule to meet the needs of the
situation. In case, however, the quota rule is not followed
continuously for a number of years because it was impossible to do
so the inference is irresistible that the quota rule had broken
down.
(E) Where the quota rule has broken down and the appointments are
made from one source in excess of the quota, but are made after
following the procedure prescribed by the rules for the
appointment, the appointees should not be pushed down below
the appointees from the other source inducted in the service at a
later date.
(F) Where the rules permit the authorities to relax the provisions
relating to the quota, ordinarily a presumption
should be raised that there was such relaxation when there is a
deviation from the quota rule.
(G) The quota for recruitment from the different sources
may be prescribed by executive instructions, if the rules
are silent on the subject.
(H) If the quota rule is prescribed by an executive
instruction, and is not followed continuously for a number of years,
the inference is that the executive instruction has ceased to
remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the
officiating Deputy Engineers under the State of Maharashtra belonged
to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a
particular service given after careful consideration should be
respected rather than scrutinised for finding out any possible error.
It is not in the interest of Service to unsettle a settled position.”
20. In State of West Bengal v. Aghore Nath (supra), the three Judge Bench
considered an apparent contradiction in conclusions (A) and (B) in the
judgment of the Constitution Bench, and observed:
“22. There can be no doubt that these two conclusions have to be read
harmoniously, and conclusion (B) can not cover cases which are
expressly excluded by conclusion (A). We may, therefore, first refer
to conclusion (A). It is clear from conclusion (A) that to enable
seniority to be counted from the date of initial appointment and not
according to the date of confirmation, the incumbent of the post has
to be initially appointed, according to rules. The corollary set out
in conclusion (A), then 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 posts cannot be taken into account for
considering the seniority. Thus, the corollary in conclusion (A)
expressly excludes the category of cases where the initial appointment
is only ad hoc and not according to rules, being made only as a
stop-gap arrangement. The case of the writ petitioners squarely falls
within this corollary in conclusion (A), which says that the
officiation in such posts cannot be taken into account for counting
the seniority.”
“25. In our opinion the conclusion (B) was added to cover over a
different kind of situation, wherein the appointments are otherwise
regular, except for the deficiency of certain procedural
requirements laid down by the rules. This is clear from the
opening words of the conclusion (B), namely, 'if the initial
appointment is not made by following the procedure laid down by the
rules' and the later expression 'till the regularisation of his
service in accordance with the rules'. We read conclusion (B), and
it must be so read to reconcile with conclusion (A), to cover the
cases where the initial appointment is made against an existing
vacancy, not limited to a fixed period of time or purpose by the
appointment order itself, and is made subject to the deficiency
in the procedural requirements prescribed by the rules for
adjudging suitability of the appointee for the post being cured
at the time of regularisation, the appointee being eligible and
qualified in every manner for a regular appointment on the date of
initial appointment in such cases. Decision about the nature of
the appointment, for determining whether it falls in this category,
has to be made on the basis of the terms of the initial appointment
itself and the provisions in the rules. In such cases, the
deficiency in the procedural requirements laid down by the rules has
to be cured at the first available opportunity, without any default of
the employee, and the appointee must continue in the post
uninterruptedly till the regularization of his service, in
accordance with the rules. In such cases, the appointee
is not to blame for the deficiency in the procedural requirements
under the rules at the time of his initial appointment, and
the appointment not-being limited to a fixed period of time is
intended to be a regular appointment, subject to the remaining
procedural requirements of the rules being fulfilled at the
earliest. In such cases also, if there be any delay in curing
the defects on account of any fault of the appointee, the
appointee would not get the full benefit of the earlier period
on account of his default, the benefit being confined only to the
period for which he is not to blame. This category of cases is
different from those covered by the corollary in conclusion (A)
which relates to appointment only on ad hoc basis as a stop-gap
arrangement and not according to rules. It is, therefore, not
correct to say, that the present cases can fall within the
ambit of conclusion (B), even though they are squarely covered by the
corollary in conclusion (A).”
21. In M.K. Shanmugam v. U.O.I. (supra), another three Judge Bench
referred to the aforementioned two judgments and observed:
“If the adhoc selection is followed by regular selection, then the
benefit of ad hoc service is not admissible if ad hoc appointment is
in violation of the rules. If the ad hoc appointment has been made as
a stopgap arrangement and where there was a procedural irregularity in
making appointments according to rules and that irregularity was
subsequently rectified, the principle to be applied in that case was
stated once again. There is difficulty in the way of the appellants
to fight out their case for seniority should be reckoned by reason of
the length of the service whether ad hoc or otherwise inasmuch as they
had not been recruited regularly. As stated earlier, the appellants
were regularly found fit for promotion only in the year 1977 and if
that period is reckoned their cases could not be considered as found
by the Tribunal. The view expressed by this Court in these cases have
been again considered in the decisions in Anuradha Bodi (Dr) v.
Municipal Corporation of Delhi (1998) 5 SCC 292, Keshav Deo v. State
of U.P., (1999) 1 SCC 280, Major Yogendra Narain Yadav v. Bindeshwar
Prasad, (1997) 2 SCC 150, I.K. Sukhija v. Union of India, (1997) 6 SCC
406, and Govt. of A.P. v. Y. Sagareswara Rao, 1995 Supp (1) SCC 16,
but all these decisions do not point out that in case the promotions
had been made ad hoc and they are subsequently regularized in the
service in all the cases, ad hoc service should be reckoned for the
purpose of seniority. It is only in those cases where initially they
had been recruited even though they have been appointed ad hoc the
recruitment was subject to the same process as it had been done in the
case of regular appointment and that the same was not a stopgap
arrangement.”
22. In State of Haryana v. Haryana Veterinary & AHTS Association and
another (2000) 8 SCC 4, the three Judge Bench considered the question
whether the ad hoc service rendered by the respondents in the cadre of
Assistant Engineers can be added to their regular service for the purpose
of higher pay scale. While reversing the judgment of the majority of the
Full Bench which had ruled in favour of the writ petitioner and declared
that ad hoc service was to be clubbed with the regular service for the
purpose of grant of financial benefits, this Court held:
“A combined reading of the aforesaid provisions of the
Recruitment Rules puts the controversy beyond any doubt and the only
conclusion which could be drawn from the aforesaid Rules is that the
services rendered either on an 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 2-
6-1989 and 16-5-1990, and therefore, the majority judgment of the High
Court must be held to be contrary to the aforesaid provisions of the
Recruitment Rules, consequently cannot be sustained. The initial
letter of appointment dated 6-12-1979 pursuance to which respondent
Rakesh Kumar joined as am Assistant Engineer on an 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 basis and clauses 1 to 4 of the said letter
further provides that the appointment will be on an 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 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 of
appointment and, therefore, the same cannot be sustained.”
23. In Dr. Chandra Prakash v. State of U.P. (supra), the Court
interpreted the U.P. Medical Service (Men’s Branch) Rules, 1945, U.P.
Medical Services (Men’s Branch) (Amendment) Rules, 1981, U.P.
Regularisation of Ad Hoc Appointments (on Posts within the Purview of the
Public Service Commission) Rules, 1979 and held that the appellants who had
been appointed against substantive vacancies and were continuing from 1965-
1976 to 1983 and were enjoying all the benefits of regular service are
entitled to seniority from the date of initial appointment. The Court also
observed that the ‘rule of seniority’ had been interpreted by the Court for
a long period of time and it would not be proper to upset the principles
laid down in other judgments.
24. None of the aforesaid judgments can be read as laying down a
proposition of law that a person who is appointed on purely ad hoc basis
for a fixed period by an authority other than the one who is competent to
make regular appointment to the service and such appointment is not made by
the specified recruiting agency is entitled to have his ad hoc service
counted for the purpose of fixation of seniority. Therefore, the
respondents, who were appointed as Masters in different subjects, Physical
Training Instructor and Hindi Teacher on purely ad hoc basis without
following the procedure prescribed under the 1955 Rules are not entitled to
have their seniority fixed on the basis of total length of service. As a
corollary to this, we hold that the direction given by the High Court for
refixation of the respondents’ seniority by counting the ad hoc service
cannot be approved.
25. In the result, the appeal is allowed, the impugned order is set aside
and the writ petition filed by the respondents is dismissed. The parties
are left to bear their own costs.
.………….….………………….…J.
[G.S. Singhvi]
…………..….………………….…J.
[Sudhansu Jyoti Mukhopadhaya]
New Delhi,
August 22, 2012.
