Ravi Chand and Others vs Rakesh Kumar and Others

Muzaffar Hussain Attar, J.—The two letters patent Appeals (LPAs) are directed against the judgment and order dated 07.05.2013 passed

in SWP No. 2356/2009 titled Rakesh Kumar and ors. v. State of J & K and ors. This decision will dispose of both the appeals. Yet again direct

recruits and the promotes have locked horns for securing benefits of seniority over one another.

The appellants in both the appeals were appointed by way of promotion on the post of Excise and Taxation Officer in the pay scale of Rs.

7500-12000 from the dates indicated against each vide Government order No. 232-F of 2004 dated 06.12.2004. Appointment of the appellants

by way of promotion on the post of Excise and Taxation Officers from the anterior dates in terms of aforementioned order was made in view of the

recommendations made by the Public Service Commission (PSC) vide its communication dated 05.10.2004 to the Financial Commissioner,

Finance Department, Civil Secretariat, Srinagar in which the appellants were cleared for being appointed by way of promotion from the date the

vacancies actually existed in their quota.

Respondents-writ petitioners were appointed as direct recruits on the post of Excise and Taxation Officer vide Government Order No. 971-

GAD of 2004 dated 23.07.2004. The appointment of the respondents-writ petitioners were made against the direct recruitment quota posts, and

on the basis of merit secured by them in the combined competitive examination. The final seniority list of the members of the J & K Excise and

Taxation (Gazetted) Service was notified Vide Government Order No. 05-F of 2006 dated 03.01.2006 in which the appellants ranked senior to

the respondents-writ petitioners. Aggrieved thereby, the respondents-writ petitioners filed SWP No. 2356/09 wherein they called in question

communication of PSC dated 05.10.2004, Government Order No. 232-F of 2004 dated 06.12.2004 to the extent it gives retrospective

promotion to the appellants on the post of Excise and Taxation Officers and also called in question the final seniority list notified vide Government

Order No. 05-F of 2006 dated 03.01.2006 to the extent it places the appellants over and above the respondents-writ petitioners in the said

seniority list.

Learned writ Court after hearing the learned counsel for the both sides vide its judgment and order dated 07.05.2013 allowed the writ petition

and granted relief's in the manner it was prayed for by the respondents-writ petitioners before the writ Court. The learned Writ Court directed the

official respondents to reframe the final seniority list taking date of appointment by promotion of appellants effective from the date of order and not

from the anterior date when the vacancies were available in their quota.

The appellants were in service candidates and were substantively holding the post of Inspectors in the non-gazetted cadre of service.

The J & K Excise and Taxation (Gazetted) Recruitment Rules 1977 (for short the Rules of 1977) were occupying the field when the

appointment by way of promotion and direct recruitments were made by the competent authority. These rules were notified vide notification No.

593 dated 08.10.1977. Rule 9 of the Rules of 1977 deals with probation and is taken note of: 9. Probation

1) Persons appointed to the service, either by direct recruitment or by selection, shall be placed on probation or trial for two years.

2) If it appears at any time during or at the end of the period of probation or of trial specified in the sub-rule (1) that an officer has not made

sufficient use of his opportunities or if he had otherwise failed to give satisfaction and has not passed the prescribed departmental examinations or

other trainings, he may, if directly recruited, be discharged from the service and if appointed by promotion or selection be reverted to the post on

which he holds a lien.

3) the Government may in the case of any person extend the period of probation or trial up to the maximum period of four years.

Relevant part of Schedule-B of Rules of 1977 is taken note of: SCHEDULE B?

Class Grade Category Designation Method of Recruitment of the post.

I. 520-900 (A) E.T.O.'s (a) 60% by competitive examination as laid down by the Government for such competitive examinations.

(b) 40% by selection from (Class II) confirmed/quasi-permanent E.T. Os. (Junior Grade)

Who have passed the departmental examination prescribed for the E.T. Os/Inspectors by higher standard.

II. 475-850 (B) E.T.O's (a) 60% by competitive examination (Junior Grade) as laid down by the Government for such competitive examinations.

(b) 40% by selection from confirmed/quasi-permanent Inspectors of the Excise and Sales Tax Department having not less than five years service

as such and have passed the departmental examination prescribed for the E.T.O's/Inspectors by higher Standard.

Subsequently, vide SRO 210 dated 05.10.1994, Schedule-A appended to the rules of 1977 was modified and one single cadre of Excise and

Taxation Officer was brought into existence. The method of recruitment which was previously prescribed came to be modified as follows:

(a) 50% by competitive examination

(b) 50% by promotion from Inspectors who had passed departmental examination and rendered 05 years of service.

The parties are not at variance about one fact viz. that both the direct recruits and promotes have been appointed to the service within their own

prescribed quota. The direct recruits and promotes have joined issue only as to whether the appellants could be appointed by way of promotion

from the date the vacancies were available in their quota or from the date they were actually appointed by way of selection/promotion on the post

of Excise and Taxation Officers.

Learned counsel for the appellants made following three fold submissions: (a) the writ petition filed by the respondents-writ petitioners being

stale would deserve to be dismissed; (b) rule 23 of the J & K Civil Services (Classification, Control and Appeal) Rules, 1956 (for short the Rules

of 1956) would permit making the appointment by way of promotion from the date vacancies were available in the quota of promotes; and (c)

even in absence of specific rule, the Government was authorized to shift the date of appointment from the actual date of appointment by way of

promotion, to a date anterior thereto.

Learned counsel for the appellants further submitted that the order of appointment by way of promotion has been passed in the year 2004 and

the final seniority list was notified in the year 2006, so the writ petition filed by the respondents-writ petitioners was not maintainable because of the

huge delay in filing the same. Learned counsel submitted that rule 23 of the rules of 1956 would require to be interpreted, in a manner, so as to

ensure that no injustice is caused to the appellants. Learned counsel submitted that the appellants were not in gazetted service either in incharge

capacity or as temporary promotes at the time they were appointed by way of selection/promotion to the post of Excise and Taxation Officers.

In order to elucidate their submissions, learned counsel for the appellants formulated illustration viz. an inspector though junior may, for any

reason, be temporarily promoted or made incharge on the post of Excise and Taxation Officer, would it mean that at the time of regular

appointment by way of promotion, his senior in the feeding service would rank junior to him in the category/class of the service to which they are

appointed by way of promotion. Learned counsel submitted that such a situation cannot be countenanced in law as that would cause gross injustice

to the senior person, who without any fault of his, was not either temporarily promoted to a higher post or not put as incharge on a higher post.

Learned counsel submitted that the Hon'ble Supreme Court in plethora of judgments and more particularly, in U.D. Lama and Others Vs. State of

Sikkim and Others, has ruled that Government has power to grant retrospective promotion. Learned counsel also referred to and relied upon

judgment of the Hon'ble Supreme Court in case titled Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, and submitted that

the Government on the recommendation of the PSC/DPC was competent to appoint the appellants by way of promotion on the post of Excise and

Taxation Officers from the date the vacancies were available in their quota. Learned counsel submitted that in view of the divergence of opinion in

various decisions of the Hon'ble Supreme Court as to whether the promotes can get the benefit of promotion from the anterior date than that of the

actual date of their promotion, the issue has been referred to the larger Bench in case titled Asis Kumar Samanta and Others Vs. State of West

Bengal and Others, Learned counsel submitted that since the decision rendered by the three Judge Bench of the Honble Supreme Court in U.D.

Lama's case has to be followed, the impugned judgment for this reason deserves to be set aside. Learned counsel, accordingly, prayed for

allowing the appeals and setting aside the impugned judgment.

Learned counsel for the respondents-writ petitioners, while supporting the impugned judgment, referred to rule 2(a), 2(b), 2(d), 2(f), 2(g), 2(h)

of the rules of 1956 and rule 9 of the rules of 1977. Learned counsel submitted that the appellants before their appointment by way of promotion

to the gazetted service were members of the non gazetted service and, as such, in view of the definition clause, it cannot be said that they have

been promoted to the gazetted service as promotions can be made from one post to the another post from the same category or class of service

and from lower grade to higher grade of class or category. Learned counsel submitted that the appellants have been appointed by way of selection

to the gazetted service on 06.12.2004 i.e. after the appointment of the respondents-writ petitioners as direct recruits thus shall rank junior to them

in the seniority list. Learned counsel while referring to the Suraj Prakash Gupta's case submitted that the rule 23 of the rules of 1956 as interpreted

by the Hon'ble Supreme Court in the aforesaid judgment does not provide for any scope of giving retrospective promotion to the appellants as

they were not temporarily promoted or put as incharge on the post of Excise and Taxation Officers from the date they have been appointed by

way of promotion on the said posts. Learned counsel submitted that the plain reading of the rule 23 of the rules of 1956 and the interpretation

placed on it by the Hon'ble Supreme Court in Suraj Prakash's case closes the door for the appellants to seek benefit of promotion from the date

anterior to actual date of their appointment by way of promotion in the gazetted service. Learned counsel submitted that appellants on the day

when they were appointed by way of promotion on the post of excise and taxation officers were not probationers as referred to in rule 9 of the

rules of 1977 as such, cannot get any benefit of rules 23 of the rules of 1956. Learned counsel in support of their submissions referred to and relied

upon judgments of the Hon'ble Supreme Court in case titled Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, in case titled

Nani Sha and Others Vs. State of Arunachal Pradesh and Others, in case titled Uttaranchal Forest Rangers' Asson. (Direct Recruit) and Others

Vs. State of U.P. and Others, , in case titled State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, , in case titled Nirmal Chandra Sinha

Vs. Union of India (UOI) and Others, , Pawan Pratap Singh and Others Vs. Reevan Singh and Others, . Learned counsel also referred to

judgments reported in Kedar Nath etc. Vs. State of M.P., , Jagdish Ch. Patnaik and Others Vs. State of Orissa and Others, and Asis Kumar

Samanta and Others Vs. State of West Bengal and Others, Learned counsel prayed for dismissal of the appeals.

In order to appreciate the controversy raised by the learned counsel for the parties, it becomes imperative to take note of rule 23 and 25 of the

rules of 1956 and paragraphs 49 to 51 of the Suraj Prakash Gupta's case:

Appointments of members (1) A probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected

exists, be appointed to the service at the earliest possible opportunity in order of seniority, and if such vacancy existed from a date previous to the

issue of the order of appointment, he may be so appointed from the date of retrospective effect from such date or, as the case may be, from such

subsequent date from which he was continuously on duty as a member of the service.

(2) Where recruitment to any service shall normally be both by direct recruitment and by transfer or promotion, the provision of sub rule (1) shall

apply separately as regards:

(a) vacancies against which person have recruited direct, and

(b) other vacancies.

(3) No probationer shall be required to produce a medical certificate of physical fitness before appointment as member of service:

Provided that in case of a probationer who is not a member of any other service, the appointing authority may, if it has reason to believe that the

probationer's physical fitness has seriously deteriorated since he satisfied the authority under clause

(c) of rule 17 require him to undergo a fresh medical examination. If on such examination he is found to be physically unfit for the service for which

he was selected the appointing authority shall discharge him from the service.

(4) No person shall at the same time be a member of more than one service. 25. Promotion

(1) All promotions shall be made by the appointing authority.

(2) Promotions to a service or class or to a selection category or grade in such service or class shall be made on the grounds of merit and ability

and shall be subject to the passing of tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability

are approximately equal.

(3) All other promotions shall be made in accordance with the seniority and the subject to any tests or special qualifications prescribed by

government unless:

(a) the promotion of a member has been with held as a penalty or

(b) a member is given special promotion for conspicuous merit and ability.

(4) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a

vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or

cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance these rules, but such temporary

promotion shall in no case exceed three months on each occasion. (5) A person promoted under sub rule (4) shall not be entitled by reason only of

such promotion to any preferential claim to future promotion.

Suraj Prakash Gupta's case

For the purpose of deciding the point, it is necessary to refer to other rules relevant on the question of regularisation. Rule 2(e) of the

Recruitment Rules, 1978 defines ""Member of Service"" as a person appointed to a post in the service under the said rules. Under Rule 5 of the said

Rules which deals with ""Qualification and method of recruitment"", it is stated in Sub-clause. (1) that one must possess the qualifications stated in the

schedule for appointment or promotion Clause (2) refers to 'appointment' to a service to be made by (a) direct recruitment (b) by

promotion/selection and (c) partly by direct recruitment and partly by promotion, Rule 3 of the 1978 Recruitment Rules deals with 'probation' and

states that persons 'appointed' against substantive vacancies, whether directly or by promotion, to any class, or category in the service shall be on

probation for two years and their confirmation shall be regulated by the provisions of the J & K (Civil Services (CCA) Rules. 1956. Rule 11(1) of

the same Rules refers to seniority to be regulated by J & K Civil Services (CCA) Rules, 1956. The second proviso to Rule 11(3) of the 1978

Rules requires that ""seniority of Assistant Engineers appointed by direct recruitment and by promotion shall, in a particular year be determined, in

the ratio fixed for direct recruitment and promotion"". It is to be noticed that these Recruitment Rules, 1978 for Engineers do not speak separately

of recruitment by transfer. They only speak of direct recruitment and promotion. Even the schedule when it deals with 60% quota for graduate

Junior Engineers and 20% quota for non-graduate, the word used is promotion.

But under the J & K Civil Service (CCA) Rules, 1956, Rule 2(e) defines 'member of service' as a person holding or appointed to a whole time

pensionable post. Rule 2(f) defines 'period of probation' of a member of the service as the period prescribed in the rules. Rule 29(g) defines

'probationer' as a person appointed to a service who has not been declared to have satisfactorily completed his probation. Rule 2(h) defines

'promotion' as the ""appointment"" of a member of a service or class or service in any category or grade to a higher category or grade of such

service or class. Rule 2(i) defines a person ""recruited direct' as one recruited otherwise than by promotion or by transfer. Rule 2(j) defines

Recruitment by transfer as one where at the time of his 'appointment' thereto, he is either a member/probationer in another service. Rule 9. refers to

'first appointment' as (a) one by promotion or by transfer and (b) by direct recruitment or (c) partly by (a) or partly by (b). Rule 14(1) deals with

'temporary appointment' not exceeding three months at a time and under Rule 14(3), the temporary appointee is to be replaced by a member of

the service or a candidate qualified and considered fit to hold the post under the 1956 Rules. Rule 14(4) says that a temporary appointment will

not be regularized as a probationer nor will he have any preferential claim for future appointment. Rule 15, which follows Rule 14 permits

commencement of probation from an anterior date and it reads as follows:

Rule 15: If such person is subsequently appointed to such service, class or category in accordance with these rules, he shall commence his

probation therein from the date of such subsequent appointment or from such earlier date as may be determined by the Minister-in-charge.

Thus a person temporarily appointed under Rule 14 can be appointed to the service according to rules from an anterior date. Rule 20 states that

no person shall be eligible for confirmation as a member of a service or class, until he has been on probation in such service or class continuously

or in the aggregate for a period of two years. Rule 22 deals with declaration of completion of probation. Rule 23 is again important and deals with

'appointment of Members' with retrospective effect. It reads as follows:

Rule 23: (1) A probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected exists, be appointed to

the service at the earliest possible opportunity in the order of seniority, and if such vacancy existed from a date previous to the issue of the order of

appointment, he may be so appointed with retrospective effect from such data or, as the case may be from such subsequent date from which he

was continuously on duty as a member of the service.

Under Rule 23, whenever probation is commenced in respect of an officer, it is permissible to appoint him to the service with retrospective

effect from such date from which the person was ""continuously on duty as a member of the service"". Read with Rule 2(e) which define 'member of

service' it means the time from which he was ""continuously holding the pensionable post"" Rule 23 does not make any distinction between different

modes of recruitment. It is well settled that in the case of a direct recruit, the probation can commence only from a date after his selection and he

can hold a permanent vacancy only after such selection. According to service jurisprudence (see in fact, discussion under Point 4), a direct recruit

cannot claim appointment from a date much before his selection. So far as a promote and also one who is recruited by transfer, are concerned,

before such persons are appointed as members of the service under Rule 23, first their probation must commence. Then such person becomes a

probationer for purposes of Rule 23. Once he is on probation, and if a substantive vacancy in the permanent cadre existed in which the promote or

a recruiter by transfer can be accommodated, and if such a vacancy has arisen from a date previous to the issue of the order of appointment (i.e.

appointment by promotion or transfer) then under Rule 23 he may be appointed to the service (i.e. regularly) with retrospective effect from such

anterior date (or, as the case may be, from such subsequent date) from which (he has been continuing on duty on a non-pensionable post (see 2(e)

defining 'member of service'). This period can certainly be one that a person holds in a stop gap or ad hoc manner. The order of 'promoting a

person in the service' regularly from an anterior date and the order of probation from an anterior date can be simultaneously passed. That is how

under Rule 23, a person holding a temporary, stopgap or ad hoc appointment beyond three months can become a probationer and get appointed

regularly to the service with retrospective effect.

(Emphasis supplied)

Rule 9(1) of the rules of 1977 refers to probation and provides that a person appointed to the service, either by direct recruitment or by

selection shall be placed on probation or trail for two years. Rule 2(g) of the rules of 1956 defines probationer in service means a person

appointed to that service who has not been declared to have satisfactorily completed the period of his probation.

The Hon'ble Supreme Court in Suraj Prakash Gupta's case at paragraph 50, besides referring to rule 2(e) and 2(f) of the rules of 1956, has

referred to rule 2(g) and rule 2(h) also. The Hon'ble Supreme Court has also referred to rule 2(i) and 2(j). Reference has also been made to rule 9,

14(1), 14(3), 14(4) and 15 of the rules of 1956. Rule 23(1) of the rules of 1956 has also been taken note of. At paragraph 51, the Hon'ble

Supreme Court has ruled that under rule 23, whenever probation is commenced in respect of an officer, it is permissible to appoint him to the

service with retrospective effect from such date from which the person was continuously on duty as a member of the service. It is further ruled that

when rule 23 is read with rule 2(e) which defines member of service, it would mean that time from which he was continuously holding the

pensionable post. It is further held in the said paragraph that rule 23 does not make any distinction between different modes of recruitment. It has

been further held that direct recruit cannot claim appointment from a date much before his selection. While dealing with the case of promote as also

one recruited by transfer, it is provided that before their appointment as member of the service under rule 23 first their probation must commence,

only then such person becomes a probationer for purposes of Rule 23. It is further held that once he is on probation, and if a substantive vacancy

in the permanent cadre existed in which the promote or a recruiter by transfer can be accommodated and if such a vacancy has arisen from a date

previous to the issue of the order of appointment (i.e. appointment by promotion or transfer) then in terms of Rule 23, he may be appointed to the

service (i.e. regularly) with retrospective effect from such anterior date (or, as the case may be, from such subsequent date) from which (he has

been continuing on duty on a non pensionable post). It has been further stated that this period can certainly be one that a person hold in a stop-gap

or ad hoc manner.

It is also ruled by Hon'ble Supreme Court at Paragraph 51 of Suraj Prakash Gupta's case that the order of promoting a person in the service?

regularly from an anterior date and the order of probation from an anterior date can be simultaneously passed. The Hon'ble Supreme Court has

further held that it is in this manner under rule 23, a person holding a temporary, stop-gap or ad hoc appointment beyond three months can

become a probationer and get appointed regularly to the service from the said date from which he was holding it temporarily or in incharge

capacity.

Suraj Prakash Gupta's case on which much emphasis has been laid, in unambiguous terms, rules that the promotes and a person recruited by

transfer can be appointed to a post from the date anterior to his actual appointment when a vacancy in the substantive cadre exists.

A specific objection was raised by the direct recruits in the Suraj Prakash Gupta's case that temporary promotion of the promotes exceeded

the period of three months and that rule 25 of the rules of 1956 is in contradistinction to rule 14 of the rules of 1956 which relate to temporary

appointments to the service, and provide for making appointments from an earlier date, whereas Rule 25 does not take care of such situation. It is

in this backdrop, that the specific reference has been made to a person who holds a post in stop-gap or ad hoc manner in paragraph 51 of the

Suraj Prakash Gupta's case. Since specific issue was raised in the said case, the same has been considered and decided by the Hon'ble Supreme

Court in the peculiar fact situation of the case.

The question, which is the subject matter of these proceedings, was not before the Hon'ble Supreme Court in Suraj Prakash Gupta's case.

Before dealing with the substantive issue involved in these appeals, it is deemed appropriate to refer to sub rule 5 of Rule 25 of the Rules of 1956

which specifically provides that a person promoted under sub rule (4) of rule 5 of the rules of 1956 shall not be entitled by reason only of such

promotion to any preferential claim to future promotion. In other words, if a person is temporarily promoted in terms of sub rule 4 of rule 25 of

rules of 1956 he cannot have preferential claim to future promotion which has to be made in accordance with relevant recruitment rules.

Rule 23 of the rules of 1956 provides for appointment of members. Sub rule 1 of rule 23 provides that a probationer shall, if a substantive

vacancy in the permanent cadre of the category for which he was selected exists be appointed to the service at the earliest possible opportunity in

order of seniority and if such vacancy existed from a date previous to the issue of the order of the appointment, he may be so appointed from the

date of retrospective effect from such date or, as the case may be, from such subsequent date from which he was continuously on duty as a

member of the service.

The plain reading of the sub rule(1) of rule 23 of the rules of 1956 highlights two specific eventualities; one that a probationer can be appointed

to the service even from the retrospective date if the vacancy existed from a date previous to the issue of order of appointment; and second part of

the rule provides that in a case in which a person is continuously on duty as a member of service then from such subsequent date a probationer can

be appointed to the service. Rule 23 has, thus, two distinct and separate limbs. The Hon'ble Supreme Court in paragraph 51 of the Suraj Prakash

Gupta's case has ruled that order of promoting a person in the service? regularly from an anterior date and the order of probation from an anterior

date can be simultaneously passed.

The first limb of Rule 23(1) of the Rules of 1956 is general in character, whereas second limb of the said rule which commences from

disjunctive expressions viz. or as the case may be, from such subsequent date from which he was continuously on duty as a member of service

particularizes a situation and thus limits its application. In paragraph 51 of the Suraj Prakash Gupta's case the expression, as highlighted above, has

been explained and defined to mean that period for which employee has worked in temporary and stop-gap arrangement.

The issue in the Suraj Prakash Gupta's case was about the holding of temporary stop-gap or ad hoc appointment beyond three months and on

the judicial reasoning, it was stated that such a person can become a probationer and get appointed regularly to the service from such date. The

Hon'ble Supreme Court in paragraph 51 of the Suraj Prakash Gupta's case, while referring to rule 2 (e) which defines member of service? has

stated that continuing on duty on a non pensionable post can certainly be the period that a person holds in a stop-gap or ad hoc manner. What

emerges from the reading of the said paragraph in its entirety is that a person, who holds a post in stop-gap or ad hoc manner is deemed to be

continuing on duty on a non pensionable post in terms of Section 2(e) of the rules of 1956. It is on this reasoning, it has been ruled that under Rule

23, a person holding a temporary or stop-gap or ad hoc appointment beyond three months can become a probationer and get appointed regularly

to the service with retrospective effect.

Second limb of Rule 23 (1) provides that this class of persons, who hold post on ad hoc temporary or stop-gap basis will be deemed to be on

probation from the date of such appointment and the appointment to a substantive vacancy in the permanent cadre can be made from such date

from which employee is continuously on duty. Second limb of the rule 23 (1), thus, takes care of ad hoc, stop-gap and temporary appointees by

deeming them to be members of service for the purpose of being probationers and their appointment from such dates they hold the said post in

such capacities.

In contradistinction thereto, the 1st limb of rule 23 provides that a probationer shall, if a substantive vacancy in the permanent cadre of the

category for which he was selected, exists, be appointed to the service at the earliest possible opportunity in order of seniority, and if such vacancy

existed from a date previous to the issue of the order of appointment, he will be so appointed from the date of retrospective effect from such date.

Paragraph 51 of the Suraj Prakash Gupta's case provides that order of promoting a person in the service regularly from the anterior date and the

order of probation from the anterior date can be simultaneously passed.

In the facts and circumstances of these appeals, it is admitted position that the PSC/DPC considered the claim of the appellants and

recommended them for being appointed by way of promotion from the dates the substantive vacancies existed in the permanent cadre of the

gazetted service. Schedule B appended to the rules of 1977 provides that inspector can be selected for being appointed to the post of Excise ad

Taxation Officer. The appointing authority, in view of the mandate contained in 1st limb of rule 23 (1) of the rules of 1956 appointed the appellants

on the post of Excise and Taxation Officers from the date they were recommended to be appointed by the PSC/DPC. In view of the mandate

contained in paragraph 51 of the Suraj Prakash Gupta's case, the order of promoting a person in the service regularly from anterior date and order

of probation from an anterior date could be simultaneously passed. The moment appellants were appointed on the post of Excise and Taxation

Officers, in terms of 1st limb of rule 23(1), they were, thus, put on probation from the dates from which they were appointed. In view of the

language in which 1st limb of the rule 23 (1) of the rules of 1956, is couched it confers power upon the appointing authority to issue an order of

appointment as probationer from an anterior date which date is also simultaneously the date of appointment. In view of the aforesaid discussion,

there is no incongruity or infirmity in the interpretation placed on 1st limb of rule 23 (1) of the rules of 1956. For placing such an interpretation on

rule 23(1) of rules of 1956 would advance the cause of justice and would ensure that a person who was appointed to the service is not subjected

to any kind of injustice. Placing contrary interpretation on the rule 23(1) of the rules of 1956 would render it unjust thereby incapable of being

applicable to any set of appointments. Courts have favoured the interpretation on a particular statute/rule which advances the cause of justice.

The aforementioned discussed position can be further elucidated by an illustration:

A is appointed by way of promotion from a lower post to higher post or from one service to another service in terms of prescribed rules. As

probation and appointment can commence simultaneously. In terms of first limb of rule 23(1) of the rules of 1956, A can be appointed by way of

promotion/selection from a date anterior to his date of actual appointment. A, if, at the time of regular appointment by way of promotion on a post

has been holding it in incharge, ad hoc or stop-gap basis, then in terms of second limb of rules 23(1) of the rules of 1956, he can be appointed to

the said post by way of promotion/selection from the date from which he has been holding it in temporary, stop-gap or in incharge capacity. That is

how Rule 23(1) of rules of 1956 delineates and demonstrates itself.

The power conferred on the competent authority in terms of Rule 23 (1) of rules of 1956 is a special power to meet out justice to the

employee who has been subjected to injustice due to delayed consideration of his case for his appointment by way of promotion on a higher post

from a date anterior to actual date of appointment.

The moment an employee is appointed by way of selection/promotion to a higher post from an anterior date, he becomes member of the higher

class/service from that anterior date and by legal fiction, he ceases to be member of class/category/service from such date, where he was working

earlier. It is however, clarified that an employee can be appointed to a post on a service, class or category from a date anterior to his actual

appointment, provided post is available in his quota and he was eligible in terms of Recruitment Rules on that anterior date.

For our afore-recorded reasons, we hold that the appointing authority has power to appoint the appellants on the post of Excise and Taxation

Officers and also appoint them as probationers simultaneously from the date the substantive vacancies were available in the permanent cadre or

category/class of the service. In the aforestated backdrop, these appeals are allowed. The impugned judgment dated 07.05.2013 passed in SWP

No. 2356/2009 is set aside and the Writ petition is dismissed.