Krishan Gopal Sharma and Others vs State of Himachal Pradesh and Others

Rajiv Sharma, J.—''Key facts'' necessary for the adjudication of this petition are that the petitioners were appointed as Social Education and Block Planning Officers on 02.02.1974, 05.02.1974, 05.02.1980, 11.08.1980, 10.12.1980 and 17.08.1981, respectively. The post of Social Education and Block Planning Officer is in feeder category for promotion to the post of Block Development Officer. The Recruitment and Promotion Rules for the post of Block Development Officer were notified vide notification, dated 18th July, 1967. According to these rules, 75% posts were to be filled up by way of promotion and 25% posts by way of direct recruitment. As per Annexure A-2, dated 24.08.1974, the share of the category of the petitioner was provided as 30%. The qualification for direct recruitment was amended and degree of a recognized University or its equivalent was provided as essential qualification vide notification, dated 20.02.1978. The roster was provided vide notification, dated 13.09.1977. The petitioners were promoted as Block Development Officers on ad hoc basis on 18.09.1992, 14.12.1992, 30.01.1993, 31.03.1993, 25.08.1993 and 11.01.1994, respectively. The respondents No. 2 to 10 have joined as Block Development Officers on 11.12.1995 by way of direct recruitment, except respondent No. 9, who joined as Block Development Officer on 30.12.1995. The respondents No. 11 to 23 joined as Block Development Officers by way of direct recruitment on 22.10.1997, except respondents No. 13 and 17, who have joined the said posts on 25.10.1997. The petitioners were promoted on regular basis as Block Development Officers on 08.07.1998 vide Annexure A-6. The tentative seniority list of Block Development Officers, as on 01.08.1998 was circulated by the respondent-department on 05.08.1998. Another tentative seniority list of the Block Development Officers, as on 01.04.1999, was circulated vide memorandum, dated 01.06.1999. One of the petitioners submitted a representation against the seniority list on 15.07.1999 (Annexure A-8). Yet, another tentative seniority list was circulated vide memorandum, dated 25.11.1999. This was also objected to by one of the petitioners by filing a separate representation on 06.12.1999 (Annexure A-10). The final seniority list of the Block Development Officers, as on 01.11.1999, was circulated vide memorandum, dated 22.12.1999. However, the petitioners have been placed below the Block Development Officers appointed by way of direct recruitment in the final seniority list. Mr. Dilip Sharma, learned Senior Advocate has vehemently argued that the period of ad hoc service followed by regular promotion on 08.07.1998 is required to be counted towards seniority.

Mr. Pramod Thakur, learned Additional Advocate General, Mr. Ajay Mohan Goel and Mr. Adarsh K. Vashishta, Advocates have strenuously argued that since the appointments of the petitioners were merely on ad hoc basis, their services cannot be counted towards seniority. They also contended that the promotions of the petitioners on ad hoc basis were dehors the Recruitment and Promotion Rules.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

The respondent-State was directed to produce the records. The records have been produced. According to the Recruitment and Promotion Rules framed vide notification, dated 18.07.1967, the post of Block Development Officer was to be filled up 75% by way of promotion and 25% by way of direct recruitment. The suitability of the candidates was to be adjudged by the Class-II, Departmental Promotion Committee. The post of Social Education and Block Planning Officers was in feeder category for promotion to the post of Block Development Officer. The share of the petitioners'' category was 30%. Petitioners were promoted on ad hoc basis on 18.09.1992, 14.12.1992, 30.01.1993, 31.03.1993, 25.08.1993 and 11.01.1994. The petitioners have placed on record the notifications, whereby they were promoted on ad hoc basis, except the notification of petitioner No. 2, who was promoted on ad hoc basis on 14.12.1992. It is evident from the language employed in the notifications that the promotions of the petitioners were on ad hoc basis. Their cases have not been considered by a duly constituted Departmental Promotion Committee. The validity of these ad hoc promotions was only for a period of six months or till the posts were filled up on regular basis. It was clearly spelt out in the notifications that the petitioners will not be entitled to regularization, seniority and confirmation etc. The private respondents have been appointed by way of direct recruitment strictly as per the Recruitment and Promotion Rules by the duly constituted Departmental Promotion Committee. The 1967 Rules have been repealed by the new Recruitment and Promotion Rules, notified on 08.02.1997. According to the new rules, the share of S.E.B.P.O. is 20% and the post is selection post to be filled up in the ratio of 50% by way of promotion and 50% by direct recruitment. According to Rule-12, the Departmental Promotion Committee is to be presided over by the Chairman of H.P.P.S.C. or a Member thereof to be nominated by him. Petitioners'' case has been considered for regular promotion by a duly constituted Departmental Promotion Committee in its meeting held on 05.01.1998. Petitioners have been promoted for the first time on regular basis as Block Development Officers on the basis of the recommendations made by the Departmental Promotion Committee vide notification, dated 08.07.1998 (Annexure A-6). Since the promotions of the petitioners were dehors the Recruitment and Promotion Rules, they are not entitled to count the ad hoc service rendered w.e.f. ad hoc promotion till their regular promotions made on the basis of the recommendations made by the Departmental Promotion Committee. In case the case of the petitioners has been recommended by the Departmental Promotion Committee strictly according to the Recruitment and Promotion Rules for ad hoc promotions, their services could be counted towards seniority. In view of this, there is no illegality in the final seniority list, as it stood on 01.11.1999 circulated vide memorandum, dated 22.12.1999, whereby the petitioners rank junior to the respondents, who were appointed by way of direct recruitment in the years 1995 and 1997, respectively.

Their Lordships of the Hon''ble Supreme Court in State of W.B. and Others Vs. Aghore Nath Dey and Others, have held that the benefit of ad hoc service is not admissible if the appointment was in violation of rules. Their Lordships have also considered the direct recruits case in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, . In the instant case, the promotion of the petitioners was also a stopgap arrangement. It was clearly spelt out in the notification, whereby the petitioners were appointed on ad hoc basis that they would not be entitled to get this service counted towards seniority, regularization and confirmation etc. Their initial promotion was also confined to six months. Their Lordships have held as under:

There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot 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 stopgap 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 stopgap 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.

In our opinion, the conclusion (B) was added to cover 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 latter 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 regularisation 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 stopgap 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).

In view of the above, it is clear that the claim of the writ petitioners (respondents in all these appeals) for treating their entire period of service prior to 26/02/1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, by a committee of five Chief Engineers was resorted to on account of the emergency, cannot be accepted. Rule II of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only ''by advertisement and interview, through the public service commission, West Bengal''. Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stopgap arrangement for fixed period, as expressly stated in the appointment order itself.

Thus, there is no escape from the conclusion that the present cases fall squarely within the ambit of the corollary in conclusion (A), of Maharashtra Engineers case and, therefore, the period of ad hoc service of writ petitioners (respondents) on the post of Assistant Engineer prior to 26/02/1980, cannot be counted for reckoning their seniority.

Their Lordships of the Hon''ble Supreme Court in M.K. Shanmugam and Another Vs. Union of India and Others, has held that ad hoc service counts only in those cases where initial appointment though ad hoc, is made by the same process as is applicable to regular appointment and is not a stopgap arrangement. In the instant case, the ad hoc promotions were not made by the Departmental Promotion Committee as per the Recruitment and Promotion Rules. Their Lordships have held as under:

The stand taken by the applicants before the Tribunals is that while regular promotions to the grade of Executive Engineers from the Assistant Executive Engineers cadre was made regularly from 1976. However, the seniority in respect of Assistant Engineers Class II was not finalised till November 1987 in view of certain disputes inter se the promotees in the cadre. The D.P.C. thereafter selected from the category of Assistant Engineers Class II in a meeting held only in May 1988 when the D.P.C. selected the appellants for the vacancies belonging to their quota for the years 1977 to 1982. The appellants had thus worked for long period varying from 6 to 11 years in the post of Executive Engineer on ad hoc before the D.P.C. could meet for finalising regular promotion. The revision of the seniority list which was challenged before the Tribunal, it was submitted, was only a corrective action though belated to render justice to the affected persons and is in compliance of the judgment of the Madras Bench of the Tribunal dated October 12, 1990 in O.A. No. 113/89 directing disposal of the representation regarding the seniority of one of the appellants. It was further made clear in the said direction that it has to be decided after taking into account the decision of the Principal Bench of the Tribunal in N.N. Chakraborty case in O. A. No. 978/87 and of this Court in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, After noticing several decisions of this Court and of the Tribunal, it was held that under the statutory recruitment rules promotions to the post of Executive Engineer were to be made from among the Assistant Engineers Class II with eight years regular service on seniority-cum-merit by selection method in the 1/3rd quota and admittedly the appellants were promoted on ad hoc basis as Executive Engineers on different dates mentioned earlier. The relevant appointments were purely temporary and on ad hoc basis and were for a limited duration and it was also made clear that services on ad hoc basis will not confer any claim in the matter of seniority, confirmation, etc. Thus it was noticed that the ad hoc promotions were made in administrative exigencies since seniority lists of Assistant Engineers could not be finalised in view of pending litigation and, therefore, the D.P.C. meeting for regular selection could not be arranged. Non-selection for a selection post can hardly be considered to be a minor procedural deficiency and, therefore, the Tribunal concluded that selection was not by a competent D.P.C. and the ad hoc promotion was itself for a limited time and, therefore, does not fulfill the conditions mentioned in the decision in State of W.B. and Others Vs. Aghore Nath Dey and Others, . The Tribunal is of the view that ad hoc service to count for seniority must be rendered continuously till the date of regularisation for 15 years or more and, therefore, it held that the appellants could not take advantage of the ad hoc promotions made purely as a stop gap arrangement and it is only in special circumstances such ad hoc service could be counted for purpose of seniority as noticed in some of the decisions of this Court. Consequently, the applications filed by the contesting respondents was allowed and it was declared that the appellants were not entitled to count their ad hoc service in the post of Executive Engineers (Electrical) for seniority, confirmation, promotion, etc.

It is contended before us that regular promotions from Executive Engineers, which is a feeder cadre, to the grade of Superintending Engineer could not take place immediately and four vacancies of Superintending Engineers had arisen by the time the meeting of D.P.C. was held on October 17, 1984. Strong reliance was placed on the counter affidavit filed before the Tribunal which is to the following effect:-

The first two points after Point No. 7 of seniority list dated 10-4-85 thus, go to the officers promoted from the rank of AEE (E) and Sl. No. 10 goes to the officer promoted from the rank of AE(E). A point was left blanks in seniority list to accommodate an officer promoted from Group B. This was erroneously shown as Sl. No. 9 instead of Sl. No. 10. This mistake has later on been rectified. The applicant cannot presume that in the selection process, he will find the top most position on the panel. The DPC chaired by a Member of UPSC will draw a selected panel according to statutory Recruitment Rules.

Appellant No. 1 claimed that he was assigned top most position by the D.P.C. held on May 13, 1988 but the provisional seniority list dated January 12, 1989 did not reflect his position and in those circumstances he sought permission to withdraw the pending application with liberty to file a fresh application. So far as appellant No. 2 is concerned, he filed an O.A. before the Madras Bench of the Tribunal claiming seniority from the year 1982 when he was promoted on ad hoc basis to the grade of Executive Engineer (Electrical). The Tribunal rejected the contention raised by the Department that he is deemed to be on regular basis only with effect from May 13, 1988 when the D.P.C. met. Since the seniority list dated January 12, 1989 was only provisional the Tribunal directed appellant No. 2 to make another representation to the Department which the Department was directed to dispose of in accordance with law. Pursuant to this direction given by the Madras Bench of the Tribunal it is stated that the seniority had to be re-fixed and, therefore, it is contended that inasmuch as they had rendered service for a long period at any rate in higher cadre and their promotions having been subsequently regularised ought to be treated as giving them seniority in the matter.

The stand taken by the contesting respondents is that under the relevant rules the D.P.C. should be headed by a member of UPSC which was not done in the case of the appellants at the time of their ad hoc appointment and appellant No. 1 was duly considered in 1978 and was not found suitable and for that reason his name did not figure in the selection list and there was no additional quota vacancy in the grade of Executive Engineer (Electrical) meant for group B cadre officers upto 1985. As a matter of fact, B. V. Ramanamurthy, who is admittedly senior to both the appellants, was only regularised on June 28, 1985 with effect from April 1, 1975 as he came under the purview of Clause 4-C of amended rules published on September 22, 1984. Since the appellants herein were not covered under Clause 4-C of amended rules 1984 and also additional quota was not available as such, they could not be regularised prior to 1985. The Tribunal has taken note of the fact that the ad hoc promotions given to the appellants were not de hors the rules. It was contended that there were four vacancies against Assistant Engineers quota but Department had informed the D.P.C. to fill two vacancies from direct recruitment and the D.P.C. accordingly selected K. Subramanian and T. Mohan Rao though B.V. Ramanamurthy and the first appellant were also eligible and vacancies were existing they were not regularly promoted by wrong interpretation of rules and separately reserving two vacancies for promotee cadre. Such provision is not existing in recruitment rules and the petitioners are the initial constituents in Assistant Engineer (Electrical) grade and are much above promotees in the Assistant Engineer (Electrical) seniority list. There was considerable delay in the introduction of initial constitution clause and the same was published only in 1984 after a gap of 9 years and came into force with effect from April 5, 1975. The Screening Committee was thereafter convened by the Department on August 16, 1985 and appellants and officers, including B.V. Ramanamurthy and several other officers, were promoted on the dates indicating against their names. Appellant No. 1 and R. Ravindran were not included as initial constituents since they neither completed eight years of service nor on ad hoc before April 5, 1975. Their promotions fall under maintenance Clauses 4-A and 4-B of amended Rules 1984. They, however, formed the initial constituents in Assistant Engineer (Electrical) or Assistant Executive Engineer (Electrical) cadre separately. On that basis it was contended that the seniority list published is in order.

The Union of India has also filed two appeals - one (Civil Appeal No. 3018 of 1997) arising out of judgment dated June 27, 1996 in O.A. No. 108/96 passed by the Madras Bench of the Central Administrative Tribunal and other (Civil Appeal No. 5081 of 1994) against judgment and order dated November 5, 1993 passed by the Tribunal in O.A. No. 286/92. In O.A. No. 108/96 the Madras Bench of the Central Administrative Tribunal merely followed the judgment of the Tribunal which is under appeal before us in Civil Appeal No. 3018 of 1997.

There is another dimension to the case by reason of the introduction of the Rules called "The Posts and Telegraphs Civil Engineering (Electrical Gazetted Officers) Recruitment (Amendment) Rules, 1984," which were given retrospective effect from April 5, 1975. It is explained that the reason for introduction of these Rules is that for recruitment to the various posts in the Electrical Branch of the Civil Wing of the Posts and Telegraphs Department, the rules of recruitment were published on the April 5, 1975. Prior to commencement of the said Rules, there were officers who had joined directly as Assistant Executive Engineer (Electrical) through the Combined Engineering Services Examination held by the Union Public Service Commission. Those who had come on deputation from C.P.W.D. were also deemed to have been regularly appointed in the Posts and Telegraphs Department pursuant to a decision of the High Court of Allahabad. Some of the officers were promoted to the higher grades on ad hoc basis. In order to ensure that these officers are not deprived of the service rendered by them before commencement of the rules, it was proposed to incorporate retrospectively a provision for initial constitution of these posts. Therefore, though the rules were amended by a notification issued on April 22, 1984 published in the Gazette of India and it was given retrospective effect but the purpose of giving retrospective effect to the provision relating to the initial constitution of these posts would not prejudicially affect the interests of any person already in service. It is in this background, it is contended before us, that the cases of the appellants could not be considered to the post of Superintendent Engineers although they were functioning as the Executive Engineers without determining their position in the initially constituted cadre and that could be done with reference to the rules, as amended in 1984 which came into effect from April 5, 1975. Though there may have been some delay and complications arising thereto there is another factor which needs to be considered in these cases. The case of the 1st appellant was considered by the Departmental Promotion Committee in which Air Marshal T.S. Virk was present on behalf of the UPSC and who presided over that meeting for selection of officers for officiating promotion to the grade of Executive Engineer (Electrical) and it was noticed that out of four vacancies, two vacancies are to be filled by promotion of direct recruit Assistant Engineer (Electrical) and the remaining two vacancies were kept reserved for the promotion of Assistant Engineer (Electrical). As no officer was available for consideration at present and the Committee accordingly considered the 4 eligible officers and assessed them. While K. Subramanian, T. Mohan Rao and B.V. Ramnamurthi were found to be ''very good,'' the 1st appellant was assessed to be only ''good.'' This was recorded in the minutes of the meeting of the Departmental Promotion Committee held on June 2, 1978 in the office of the UPSC. Thereafter, in the minutes of the meeting of the Departmental Promotion Committee held on May 13, 1988, the 1st appellant was found to be ''very good'' for the year 1977 as an Executive Engineer (Electrical) Group A. It is in these circumstances, it is to be considered whether the case of the 1st appellant could have been considered earlier to the date he was found fit to be promoted. The initially constituted cadre is of the date April 5, 1975 and on that date the 1st appellant had not been considered for promotion to the post of Executive Engineer and he was found fit to be promoted as Executive Engineer only with effect from 1977, i.e., much later to the promulgation of these rules. Reliance has been placed on the decision of this Court in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, . That is a case where the quota rule between the direct recruits and the promotees had broken down and the appointments were made from one source in excess of the quota, but were made after following the procedure prescribed by the rules for the appointment, therefore it was held that the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. In that case the direct recruits were not available in adequate number for appointment and appropriate candidates in the subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue. The development work of the State pre-emptorily required experienced and efficient hands and in that situation the State Government took a decision to fill up the vacancies by promotion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules. Therefore, in those peculiar conditions certain directions had been given by this Court inasmuch as the rigours of the quota rule having been neutralised and the seniority being dependent on continuous officiation, the seniority so fixed would not be defeated by the ratio fixed by the rules. It is difficult to appreciate as to how the principle stated in that case could be extended to the case of 1st appellant in the present case as the quota rule had not broken down in any manner nor is there any material before the Court to show that he has not been duly considered by the Departmental Promotion Committee before appointment to the higher grade. Again in the case of State of W.B. and Others Vs. Aghore Nath Dey and Others, the same question arose. In that case it was noticed that when reckoning seniority the length of the service may be a relevant factor. If the ad hoc 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 the stop gap 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 decision in Dr. Anuradha Bodi and Others Etc. Etc. Vs. Minicipal Corporation of Delhi and Others, Keshav Deo and Another Vs. State of U.P. and Others, ; Major Yogendra Narain Yadav and Others Vs. Bindeshwar Prasad and Others, I.K. Sukhija and Others Vs. Union of India (UOI) and Others, Government of A.P. and Another Vs. Y. Sagareswara Rao, but all these decisions do not point out that in case the promotions had been made ad hoc and they are subsequently regularised 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 stop gap arrangement. That is not the position in the present cases at all. Therefore, we are of the view that conclusions reached by the Tribunal appear to us to be correct and call for no interference. However, we make it clear, as noticed earlier, that while amending the rules of recruitment in the 1984 all those who are already in service will be borne in mind in adjusting the seniority amongst the promotees inter se and suitable adjustments could be made and so far as the direct recruits are concerned, their cases will go by their quota rule and the view taken by the Tribunal in this regard cannot be taken exception of.

Their Lordships of the Hon''ble Supreme Court in Sanjay K. Sinha-II and Others Vs. State of Bihar and Others, have held that the appointments made contrary to rules are merely fortuitous and do not confer benefit of seniority on appointees over and above the regular/substantive appointees to the services. Their Lordships have held as under:

It is settled law that appointments made contrary to the rules are merely fortuitous and do not confer benefit of seniority on the appointees over and above the regular/substantive appointees to the service.

Their Lordships of the Hon''ble Supreme Court in R.K. Mobisana Singh Vs. KH. Temba Singh and Others, have held that when promotion is given only in the exigency of situation without following the Rules, the period cannot be counted towards seniority. The retrospective regularization can be granted only where there exists a Rule. The Hon''ble Supreme Court was seized of the matter in a case relating to seniority dispute between promotees and direct recruits in the grade of Assistant Engineers. Though the Recruitment Rules prescribed quota for direct recruitment and promotion, yet there were no rules governing seniority. Their Lordships have reviewed the law laid down in various judgments, particularly the Constitution Bench decision in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, Their Lordships have held as under:

Applying the principles of the aforementioned decisions to the facts of this case, we are of the opinion that although in terms of the office memorandum, no retrospective effect could be given to the order of regularisation passed in favour of the promotees, as in absence of any seniority rules operating in the field, the State was required to evolve a policy. It for its own reason did not do so.

The Office Memorandum of 1959 was applicable in a case of this nature. In some of the cases, promotion might have been given without following the Rules. When promotion is given only in the exigency of situation without following the Rules, the period cannot be counted towards seniority.

If they had been given regularisation with retrospective effect, the same by itself may not be a ground to apply the said order ipso facto for determining the inter se seniority. Seniority although is not a fundamental right but a civil right. Such a right of the direct recruits could not have been taken away without affording an opportunity of hearing to them.

It was obligatory on the part of the official respondents to take into consideration that the retrospective regularisation could be granted only when there exists such a rule. If the Rules were not followed at the time of grant of promotion, question of grant of regularisation with retrospective effect would not arise. Retrospective regularisation, whether in terms of the directions of the High Court or otherwise, thus, although could confer other service benefits on the officer concerned, but the same cannot be held to be of any assistance for reckoning seniority with retrospective effect.

The matter, therefore, requires a closure scrutiny by the State itself. As the function relating to determination of inter se seniority is that of the State, we do not approve constitution of a committee, as has been proposed by the learned Single Judge. It would, however, be open to the State to do so, if it so desires. The competent authority of the State is, therefore, directed to determine the inter se seniority of the parties in view of the principles enunciated hereinbefore and apply the same to the facts of each case. Such an exercise should be completed within a period of three months. These appeals are, therefore, disposed of with the aforementioned observations and directions with no order as to costs.

Their Lordships of the Hon''ble Supreme Court in Dr. P.P.C. Rawani and Others Vs. Union of India (UOI) and Others, have held that ad hoc doctors on regularization could not be given seniority from the date of their initial appointment vis-�-vis doctors appointed on regular basis through UPSC, otherwise there would be no difference between regular and regularized doctors. Their Lordships have held as under:

If all the ad hoc doctors were to be regularized with effect from the date of their initial appointment, with seniority also from the date of initial appointment, there will be no difference between regular recruitment and regularization of ad hoc appointments, thereby defeating the very purpose of systematic regular recruitment through UPSC. Ad hoc or stop gap appointees were not normally regularized and given seniority from the date of initial appointment. They were usually given regularization and seniority only after a certain period of service, which used to vary from one year to ten years or even more.

Their Lordships of the Hon''ble Supreme Court in Union of India (UOI) Vs. Dharam Pal Etc., have held that where initial appointment is ad hoc and not according to rules and the appointment is made as a stopgap arrangement, period of officiation does not count for seniority. When ad hoc appointment is made, the same should be done according to rules. If mandatory provisions of the rules are not complied with, the period does not count for seniority. Their Lordships have held as under:

It is, however, also well settled that where the initial appointment is only ad hoc, not according to rules and made a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.

The same principles have been laid down by their Lordships of the Hon''ble Supreme Court in State of Haryana and Others Vs. Vijay Singh and Others, as under:

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 interse 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.

Before concluding, we consider it proper to notice the judgments on which reliance has been placed by the 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 dehors the relevant statutory provisions and dispute relating to seniority has to be resolved keeping in view such provisions.

In Direct Recruit Class II Engg. Officers'' Assn. V. State of Maharashtra 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 (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982, etc.

After examining the relevant rules, the Court in Direct Recruit Class II Engg. Officers'' Assn. culled out the following propositions: (SCC pp. 745-46, para 47)

(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 stopgap 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 regularization 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 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 ana 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 scrutinized for finding out any possible error. It is not in the interest of service to unsettle a settled position.

None for 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.

In a recent judgment Bhupendra Nath Hazarika and Another Vs. State of Assam and Others, their Lordships of the Hon''ble Supreme Court have held that where recruitment is regulated by statutory rules, recruitment must be in accordance with the rules and any appointment dehors the rules would be illegal and such appointees have to be put in different class and cannot claim seniority even when their appointment is later regularized. Their Lordships have held as under:

In the obtaining factual matrix, the Selection Committee had not recommended the case of the special batch recruits to the Commission. As the affidavit filed by the Secretary to the Commission before the Tribunal clearly stated that the procedure was not followed and the same has been accepted by the Tribunal and concurred with by the High Court, there is no reason to differ with the same. Therefore, we give the seal of imprimatur to the said conclusion. At the risk of repetition, we state that that the selection has been made in excess of he quota and in the absence of a recommendation of the Selection Committee as prescribed under the Rules. Plainly speaking, a maladroit effort was made to appoint the special batch recruits first despite the recommendation of the direct recruits pending before the State Government. It is also disturbing that though the Cabinet had not approved the proposal for special drive to appoint from other source yet the Director General of Police impressed upon the Commission to recommend 20 names. It is also equally perplexing that the concept of the special drive was meant to have young officers but in the ultimate eventuate, officers who were nearing fifty got the appointment. It is obvious that it was totally arbitrary and exhibits indecent enthusiasm to confer benefits on the special batch by making the Rules comatosed.

At this stage, it is requisite to clarify one aspect. The learned Single Judge has treated the selection of the special batch recruits totally dehors the Rules and the Division Bench has opined that it is not dehors the Rules on the foundation that they were not casual appointees and their recommendation had been made by the Commission and further they had not placed any overt act in getting their selection done.

The aforesaid authorities clearly lay down the principle that when there is violation of the recruitment rules, the recruitment is unsustainable. Whether any active part is played by a selectee or not has nothing to do with the appointment made in contravention of the rules. In the case at hand, the special batch recruits have encroached into the quota of the direct recruits. The whole selection process is in violation of the rules and, therefore, we are inclined to concur with the opinion expressed by the learned Single Judge that the selection was made dehors the rules. The Division Bench was not justified in stating that the selection could not be said to be dehors the rules. However, we accept the conclusion of the Tribunal as well as the High Court that as there had been long delay in challenging the selection of the special batch recruits and some of them have already retired, it would not be apposite to annual their appointments.

Presently, we shall refer to Rule 18 which deals with seniority. Mr. Prashant Bhushan, during the course of hearing, has laid immense emphasis on the said Rule to buttress the stance that it the service rendered in the previous posts by the special batch recruits are taken into consideration on the anvil of Rule 18, they should be treated as senior to the direct recruits. Regard being had to the said submission, it becomes necessitous to refer to the said Rule in entirety. It reads as follows:

Seniority-(1) The seniority of a member of the service shall be determined on the basis of his date of appointment to the service:

Provided that inter se seniority of the persons recruited under Rules 5(1)(a), 5(1)(b) and 5(2) on the same date shall be according to the following order:

(i) persons recruited under Rule 5(2);

(ii) persons recruited under Rule 5(1)(b);

(iii) persons recruited under Rule 5(1)(a);

Provided further that in the case of a person recruited under Rule 5(1)(C) the Governor may, in consideration of his previous service and/or experience, fix a deemed date of appointment for the purpose of seniority after taking into consideration half the period of continuous service in completed years subject to a maximum of 4 years rendered in previous service.

(2) Inter se seniority of persons appointed under any of the three clauses of Rule 5(1), shall be in the order in which their names appear in the list from which the appointment is made.

(3) The date of appointment for the purposes of this rule, shall be, if a date is specified in the notification of appointment such date or if no such date is specified the date on which notification is issued.

(4) Notwithstanding anything contained in sub-rules (1) to (3) the seniority of a person who does not join the service within three months of the date of appointment as defined in sub-rule (3), shall be determined on the basis of the actual date of his joining the service.

(5) If the confirmation of a member of the service is delayed on account of his failure to qualify for such confirmation, he shall lose his position in the order of seniority vis-�-vis such of his juniors as may be confirmed earlier than him. His original position shall, however, be restored on his confirmation subsequently but any benefits of promotion, etc. shall not accrue to him with retrospective effect on such confirmation.

(6) Inter se seniority of persons promoted to the senior grade of the service shall be in the order in which their names appear in the list from which the promotion is made.

Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this writ petition and the same is dismissed, so also the pending application(s), if any. No costs.