Suraj Prakash Sharma vs State of J & K

Both these petitions involve common questions of law and facts and, therefore, can be decided by a common judgment because what arises for

determination is, whether the period of adhoc appointment counts for seniority where under the Recruitment Rules appointment to the post can be

made only on the basis of selection made by the Public Service Commission after holding competitive examination.

The facts emerging from the pleadings are that both the petitioners were appointed as Assistant Conservators of Forest on 4.1.1978 by

respondent No:2 on the recommendation of Public Service Commission. It is also not disputed that respondent No: 4 (in SWP No: 965/1990 and

No:8 in SWP No: 321/1991) did not figure in the select list published by the Public Service Commission on 11.03.1978. It is thus clear that the

4th respondent was not regularly appointed on the post at the time the petitioners were appointed. He was thus junior to them. It appears that his

service was regularised much after March, 1978. However, by order dated 10.10.1990, his adhoc appointment from 10.09.1977 to 31.07.1978

was regularised for purposes of seniority. This order reads as under:

The adhoc appointment of Shri Aijaz Ahmed Bhat, DFO Bandipur as ACF, from 10.09.1977 to 31.07.1978 is hereby regularised for purposes

of his seniority. The officer shall not, however, be paid any arrears that may accrue to him on account of regularisation of adhoc appointment.

The petitioners challenged the order on the ground that regularisation of the period of adhoc appointment is not only contrary against law, but

also against the Principles of natural justice. This order even otherwise was against the earlier decision of the Department conveyed to respondent

No: 4 vide letter No: Fst/Est90/69II dated 2.1.1084 issued by the 2nd respondent, which is extracted below:

' Your representation against tentative seniority list in respect of position given to Pir Bashir Ahmad and officers shown at Serial No.

35,37,39,40,41 and 42 and your claim for placing at serial No:28 in seniority list, having been considered under rules, has been found without

force and hence rejected.

As regards your second claim against the seniority position of Shri Mohd. Shafi Khan shown in the tentative seniority list, it is to inform you that the

period of adhoc service of Shri Mohd. Shafiq Khan will not be counted under rules, for purposes of determining his seniority ,

Your claim for treating the adhoc period towards seniority is not also sustainable under rules.

So the relief prayed by the petitioners is that the order dated 10.10.1990 be quashed and their seniority restored.

In the counter filed on behalf of the official respondents, the impugned order is justified on the ground that after considering his representation,

the Government regularised the period of his adhoc appointment for the purpose of seniority.

Mr. Bhardwaj, appearing for the petitioners, argued that the order of regularisation is without jurisdiction because when the appointments to the

post under the rules have to be made by direct recruitment on the basis of result of competitive examination, seniority can be determined only

under Rule 24 of the Civil Service (Classification, Control and Appeal) Rules, 1956. As per the rule, merit secured by the candidates in the

competitive examination determines his seniority and not the date of appointment. Since the petitioners were appointment in January, 1978 on the

basis of selection made by the Public Service Commission, regularisation of adhoc service of a person, who was not appointed in accordance with

the Recruitment Rules, is against the law.

Mr. Kapoor, learned Additional Advocate General, however, submitted that the Government have inherent powers to relax the rules and,

therefore, order of regularisation does not suffer from any infirmity.

The only question involved for consideration is whether the Government has the powers to regularise adhoc appointment so as to give benefit of

seniority against those who had been appointed in accordance with the Recruitment rules? Respondent No:4, it is admitted, does not figure in the

select list dated 11.03.1978 issued by the Public Service Commission. He was, however, appointed on adhoc basis by order dated 10.09.1978,

which reads as under:

Sanction is accorded to:

the extension in the period of adhoc appointments of S/Shri A.R.Latoo and Ejaz Ahmad as Assistant Conservator of Forests (Rs. 475850)

from 10th March, 1978 for a further period of six months or till their selection is made by the Public Service Commission whichever be

earlier............

The order even if extended, was coterminus with the appointments made on the basis of the select list of the Public Service Commission, unless he

was also selected which admittedly is not the case.

However, the official respondents have ignored not only the recruitment rules, but the law also that he could not be appointed unless he was

selected by the Public Service Commission first by extending his adhoc appointment and then regularising it while ignoring those who had been duly

selected. His appointment was thus in violation of Articles 14 and 16 of the Constitution and dehors, the Recruitment rules, as laid down in J and K

Public Service Commission Vs. Narinder Mohan, AIR 1994 SC 1808, holding that wherever rules prescribe direct recruitment to the service,

adhoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make adhoc appointment due to emergent

exigencies does not clothe the executive Government with power to relax the recruitment or to regularise such appointment nor to claim such

appointment to be regular or in accordance with rules. Back door adhoc appointments at the behest of power source or otherwise and

recruitment, according to rules, is mutually antagonistic and strange bed partners. They cannot coexist in the same sheath. The former is negation of

fairplay. The latter are the products of order and regularity. Every eligible person not necessary be fit to be appointed to a post or office under the

State, selection according to rules by a properly constituted commission (reference is to Public Service Commission) and fitment for appointment

assures fairness in selection and exhibits arbitrariness in appointment.

Since Public Service Commission did make selection in 1978 on the basis of which appointments were made on 4.1.1978, continuance of

respondent No:4 (Ejaz Ahmad) was illegal and so also his regularisation. However, the question involved is no longer resintegra in view of the law

laid down in S.K.Saha Vs. Prem Prakash Agarwal, AIR 1994 SC 745, holding that

From time to time, this court has considered, as to what is the relevant date for fixing inter se seniority of entrants in the same cadre, either by the

same process or by different processes of recruitment. Ultimately, the matter was examined by a Constitution Bench. In the case of Direct Recruit

Class II Engineering Officers' Association Vs. State of Maharashtra, 1990(2) SCC 715 AIR 1990 SC 1607. It was said that once the

appointment is made to a post according to rules, the seniority of the person so appointed is to be counted from the date of his appointment and

not with regard to the date of his confirmation. It was also said that the corollary of the above rules is , that where the initial appointment is only

adhoc 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. The same view has been reiterated in the case of State of West Bengal Vs. Aghore Nath Dev. 1993 (3) SCC 371.

After referring to the facts of the case, their Lordships held that:

......The High Court has rightly held that while appointing him on the basis of the recommendation of the Commission, the date of appointment

could not have been ante dated and made to be effective w.e.f. 4.1.1957. This court has repeatedly struck down and decried any attempt on the

part of the appointing authority to give a notional seniority from a retrospective date, especially, when this process affects the seniority of those

who have already entered into the service. In the present case the respondent No: 1 had been appointed as Assistant Director of Industries on

IS.2.1959 on basis of an advertisement made in the year 1958 and on the recommendation of the Commission. His seniority in the service could

not have been affected by the State Government, by giving notional date of appointment of the appellant w.e.f. 4.1.1995.

This is the last word on the point at issue and applies to the facts of the case on all fours, because the petitioner was appointed as Assistant

Conservator of Forests on adhoc basis for a period of six months on 10. 09. 1977. Even though he was not selected by the Public Service

Commission, he, it appears, was appointed in relaxation of rules and subsequently the period of adhoc appointment from 10.09.1977 to

31.07.1978 is sought to be regularised for the purpose of seniority to the detriment of the petitioners who, admittedly, are senior to him as they

having been appointed in accordance with the recruitment rules are entitled to seniority under rule 24 of the Civil Services (Classification, Control

and Appeal) Rules, 1956.

Since the respondent (Ejaz Ahmad) was not appointed according to the rules, but in relaxation thereof, which was not possible, he cannot be made

senior to those appointed according to rules. Therefore, the order impugned, being illegal and void ab initio, is liable to be quashed.

In view of the above, these petitions are allowed and the Government order dated 10.10.1990, impugned in the petition, is quashed. There will

be no order as to costs.