Full Judgment Text
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PETITIONER:
ASHOK GULATI & ORS.
Vs.
RESPONDENT:
B.S. JAIN & ORS.
DATE OF JUDGMENT17/12/1986
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
NATRAJAN, S. (J)
CITATION:
1987 AIR 424 1987 SCR (1) 603
1986 SCC Supl. 597 JT 1987 (1) 92
1986 SCALE (2)1062
CITATOR INFO :
RF 1987 SC 415 (2)
RF 1987 SC1676 (26)
R 1988 SC 268 (25)
F 1988 SC 654 (2)
D 1989 SC 278 (20,21)
RF 1990 SC 857 (8)
RF 1991 SC 518 (1,3)
D 1992 SC 922 (16)
ACT:
Jurisdiction of High Court under Article 226 of the
Constitution-When the impugned order itself is for a tempo-
rary period of six months and subject to the rights of
others, propriety of the issuance of Rule Nisi and making it
absolute after years, at the instance of an aggrieved party.
Temporary Service on ad hoc basis and dehors the rules,
counting of--Whether such service rendered by the Asst.
Engineers would count for the purposes of seniority in the
cadre of Asst. Engineers and also for the purposes of promo-
tion to Class I Executive Engineers--Haryana Service of
Engineers Class II Public Works Department (Irrigation
Branch) Rules, 1964 and Haryana Service of Engineers Class I
Public Works Department (Irrigation Branch) Rules, 1964 as
amended in 1975 Rules 2(5), 6(b), 15 and 22, scope of
Words and Phrases--Meaning of "Prescribed" in Rule 15
whether there was relaxation of rule---If so, whether such a
relaxation is discriminatory and violative of Articles 14
and 16 of the Constitution.
HEADNOTE:
Haryana Service of Engineers, Class II, Public Works
Department (Irrigation Branch) Rules relating to recruitment
etc. of Asst. Engineers and Haryana Service of Engineers
Class I, Public Works Department (Irrigation Branch) relat-
ing to Executive Engineers came into force in 1970 and 1964
respectively. Respondent No. 2, B.L. Gupta and Respondents
Nos. B.S. Jain were appointed as temporary engineers (ad-
hoc) with effect from 19.5.1969 and 2.1.1971 respectively,
the former sponsored by the Employment Exchange and the
latter with reference to an advertisement in the newspapers.
Their appointments were de hors the said Class II Rules to
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meet the exigencies of service. In the letters of appoint-
ment issued to them it was specified (i) that their appoint-
ment was purely on an ad-hoc basis for a period of six
months from the date of their joining the post on a fixed
salary of Rs.400 plus allowances and their services were
terminable without notice; (ii) that the appointment would
not entitle them to any seniority or other benefit under the
service rules for the time being in force and would also not
count towards increment in their salary; (iii) that the
posts of Tempor-
604
ary Engineers in Class II service would be advertised in the
course by the Haryana Public Service Commission and they
should apply for such posts through the Commission, and that
if they were not selected by the Commission, their services
would be liable to be terminated without notice; and (iv)
that their inter-se seniority among the Temporary Engineers
would be in the order of merit in the list of candidates as
settled by the Commission. The services of respondents Nos.
1 and 2 were however continued by the State Government from
time to time, six months at a time till the Secretary,
Haryana Public Service Commission by his letter dated July
8, 1973 addressed to the Commissioner and Secretary to the
State Government of Haryana, Public Works Department (Irri-
gation Branch) conveyed the approval of the Commission to
the ad-hoc appointment of 251 Temporary Engineers beyond the
period of six months till regular appointments were made to
the posts through the Commission. Accordingly both these
respondents continued to hold the posts of Temporary Engi-
neers on ad-hoc basis till the end of the year 1974 i.e.
till they were recruited as Asst. Engineers through the
Public Service Commission on April 21, 1975 on regular
basis. In the letter of appointment issued by the Commis-
sioner and Secretary to Government of Haryana (Irrigation &
Power Department) dated January 13, 1975 it was specified
again that inter-se seniority of Asst. Engineers would be
determined on the basis of the combined merit list prepared
by the Public Service Commission. In the combined merit list
prepared by the Commission, respondents Nos. 1 and 2 were
placed very much below the appellants and respondents Nos.
5-24 being at serial Nos. 148 and 150 respectively.
The State Government of Haryana by order dated December
20, 1978 promoted 62 Asst. Engineers including the appel-
lants and respondent Nos. 5-24 as Executive Engineers on a
purely ad-hoc basis for a period of six months subject to
certain terms and conditions, namely; (i) the promotions
were subject to the approval of the Public Service Commis-
sion as also to the claims of other officers; (ii) such
promotions were not to give any right to the officers for
being appointed on a substantive basis as Executive Engi-
neers; and (iii) such of the officers as had not passed the
departmental professional and revenue examinations were
required to pass such examination within a period of one
year or otherwise they were liable to be reverted to their
original post. These ad-hoc promotions of the appellants and
respondents Nos. 5-24 were made in relaxation of the provi-
sions contained in rr. 6(b) and 15 of the Haryana Service of
Engineers, Class I Public Works Department (irrigation
Branch) Rules, 1964. Presumably, the State Government ex-
cluded from consideration the case of respondents Nos. 1 and
2 for
605
promotion because in the combined seniority list they ranked
below the appellants and respondents Nos. 5-24 being placed
at serial Nos. I48 and 150 respectively.
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The said ad-hoc promotions to Class I posts were as-
sailed by respondents I and 2 by a petition under Article
226. A learned Single Judge by his judgment dated 8.10.1980
quashed the impugned order of the State Government making
the said ad hoc promotions and directed the State Government
to reach a decision afresh as regards the ad hoc promotions
with advertence to the observations made by him. Thereupon,
the appellants preferred an appeal under clause 10 of the
Letters Patent but the appeal was dismissed in limine by the
Division Bench, by its order dated 6.11.1980. The appel-
lants’ contention that the appointment of respondents Nos. I
and 2 as Temporary Engineers on an ad-hoc basis was contrary
to para 8.312 of the Manual of Administration and therefore
the period during which they worked as Temporary Engineers
(ad-hoc) could not be taken into consideration, was repelled
by the Bench on the ground that no such point was taken
before the learned Single Judge. Hence the appeal by special
leave.
Allowing the appeal, the Court
HELD: 1. The High Court ought not to have exercised
their powers under Article 226 of the Constitution and
entertained the writ petition of respondents I and 2 partic-
ularly when the impugned order of the State Government
making promotion of the 62 Asst. Engineers including the
appellants and respondents 5-24 as Executive Engineers was
purely on an ad-hoc basis for a period of six months and
expressly made subject to the rights of other officers.
Instead of interfering with the impugned order of the State
Government the proper course for the High Court should have
been to issue a direction to the State Government to consid-
er the cases of the eligible officers including respondents
Nos. I and 2 for ad-hoc promotion as Executive Engineer if
their turn was due for such promotion according to their
placement in the seniority list and it should have in the
meanwhile allowed the appellants and respondents Nos. 5-24
to continue in their posts as Executive Engineers (ad-hoc)
subject to the condition that while considering their cases
for promotion the State Government would not take that
circumstance into consideration that they had continued to
function as Executive Engineers on an ad-hoc basis. [613G-H;
614A-C]
1.2 Rule 15 of the Punjab/Haryana Service of Engineers
Class I P.W.D. (Irrigation Branch) Rules, 1970 in terms
provides that the
606
departmental professional and revenue examinations for
purposes of promotion to the Class I service have to be
passed within such period as may be prescribed. The word
’prescribed’ in Rule 15 clearly empowers the State Govern-
ment to provide for the period during which the promoted
officers had to pass the departmental test. In terms of that
rule, the State Government by the impugned order directed
that the officers who had not passed the departmental pro-
fessional and revenue examinations were required to pass
such examinations within a period of one year otherwise they
were liable to be reverted to their original post. There-
fore, no question of relaxation under Rule 22 arose. [613C-
E]
2.1 The period of service rendered by persons like
respondents Nos. 1 and 2 who were appointed on ad hoc basis
purely on a stop gap arrangement for six months at a time de
hors the rules, cannot be considered for purposes of their
seniority in Class II service or in reckoning their eligi-
bility of 8 years’ service in that class of service under
Rule 6(b) of the Class I Rules. [625F-G]
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2.2. As a matter of construction the words "Class II
service" in Rule 8(2) introduced by amendment in 1975 must
be construed to have the same meaning as the expression
"Class II service" as defined in Rule 2(5). Prior to the
amendment in 1975, the expression, "Class II Service" as
defined in Rule 2(5) meant the members of Class II service
including Temporary Engineers. The key to the interpretation
of the definition clause in Rule 2(5) is the words "for the
purpose of promotion." The effect of the enlarged definition
of Class II service in Rule 2(5) is that these words when
found in the Act must, for the purpose of promotion, be
understood in that context in a certain sense i.e. to in-
clude not only members of CIass II Service including Tempo-
rary Engineers but also Offg. Sub-Division Officers and
Offg. Assistant Design Engineers who, but for the interpre-
tation clause, would not be so included. That would be in
consonance with the purpose and object of the amendment.
[619G-H; 620B-C]
2.3 The meaning of the word "as" in the collocation of
the words "any service rendered as a Temporary Engineer" in
Explanation to Rule 6(b) of the Class I Rules must obviously
mean "in the capacity of". [621A-B]
Dr. Asim Kumar Bose v. Union of India & Ors., [1983] 1
SCC 345, applied.
2.4 It is true that though respondents Nos. 1 and 2 were
607
appointed as Temporary Engineers on an ad-hoc basis, they
should be deprived of the period of their officiation as
such till they were absorbed to the post of Assistant Engi-
neer on a regular basis through the Public Service Commis-
sion on April 21, 1975. That is a legal consequence which
cannot be avoided on well-settled principles. [623D-E]
2.5 According to the accepted cannos of service juris-
prudence, seniority of a person appointed must be reckoned
from the date he becomes a member of the service. The date
from which seniority is to be reckoned may be laid down by
rules or instructions (a) on the basis of the date of ap-
pointment (b) on the basis of confirmation (c) on the basis
of regularisation of service (d) on the basis of length of
service; or (e) on any other reasonable basis. It is well-
settled that an ad-hoc or fortuitous appointment on a tempo-
rary or stop-gap basis cannot be taken into account for the
purpose of seniority even if the appointee was qualified to
hold the post on a regular basis, as such temporary tenure
hardly counts for seniority in any system of service juris-
prudence. [624B-D]
2.6 It must now be well taken as well established that
after the Supreme Court decisions from N.K. Chauhan to
Baleswar Das in the absence of any other valid principle of
seniority, the inter-se seniority between direct recruits
and promotees should as far as possible be determined by the
length of continuous service whether temporary or permanent
in a particular grade or post (this should exclude periods
for which an appointment is held in a purely stop-gap or
fortuitous arrangement). These decisions particularly that-
in Baleshwar Das’s case clearly lay down that ordinarily and
in the absence of any specific rule of seniority governing
the cadre or service, the length of continuous officiation
should be counted in reckoning seniority as between direct
recruits and promotees. These authorities nowhere lay down
that the same principle i.e. the length of continuous offi-
ciation must be the sole guiding factor and the only crite-
rion in determining seniority of such adhoc employees
vis-a-vis direct recruits. On the contrary, they clearly
proceed on the principle that persons appointed on an ad-hoc
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basis or for fortuitous reasons or by stop-gap arrangement,
constitute a class which is separate and distinct from those
who are appointed to posts in the service in strict conform-
ity with the rules of recruitment. [629E-G; 627.E-F]
N.K. Chauhan & Ors. v. State of Gujarat & Ors., [1977] 1
SCR 1037; S.B. Patwardhan & Ors. v. State of Maharashtra &
Ors., [1977] SCR 775; and Baleshwar Das & Ors. v. State of
Uttar Pradesh & Ors., [1981] 1 SCR 449, discussed.
608
A.P.M. Mayakutty etc. v. Secretary, Public Service
Department, [1977] 2 SCR 937; State of Gujarat v.C.G. Desai
JUDGMENT:
Ors., [1983] 3 SCC 601; O.P. Singla v. Union of India,
[1984] 4 SCC 450; G.S. Lamba v. Union of India, [1985] 2 SCC
604; P.S. Mahal v. Union of India, [1984] 4 SCC 545; and
Pran Krishna Goswami & Ors. v. State of West Bengal & Ors.,
[1985] Suppl. SCC 221, referred to.
Narendra Chadha & Ors. v. Union of India & Ors., [1986] 2
SCC 157; G.P. Doval & Ors. v. The Chief Secretary, Govern-
ment of Uttar Pradesh & Ors., [1985] 1 SCR 70; and C.P.
Damodaran Nayar v. State of Kerala & Ors., [1974] 2 SCR 867,
distinguished.
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 149 of
1981.
From the Judgment and Order dated 6.11. 1980 of the
Punjab and Haryana High Court in C.P.A. No. 811 of 1980.
M.K. Ramamurthy, U.R. Lalit, Shanti Bhushan, M.R. Sharma,
P.P. Rao, S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam,
P.P. Sharma, K.S. Tiwari, C.V. Subba Rao, I.S. Goel, P.H.
Parekh, Sohail Dutt, Uma Datta and V.P. Goel for the appear-
ing parties.
The Judgment of the Court was delivered by
SEN, J. In this appeal by special leave, the short
question involved is whether respondents Nos. 1 and 2 were
entitled to the benefits of the period of service rendered
by them as Temporary Engineers on an ad-hoc basis in the
Irrigation Branch of the Public Works Department, State of
Haryana i.e. prior to their appointment as Assistant Engi-
neers on regular basis on April 21, 1975 along with the six
appellants and respondents Nos. 5-24 for purposes of reckon-
ing their eligibility for promotion to the post of Executive
Engineer under r.6(b) read with the Explanation thereto of
the Haryana Service of Engineers, Class I, Public Works
Department (Irrigation Branch) Rules, 1964, as amended in
1975, (’Class I Rules’ for short) as also for purposes of
their seniority in the cadre of Assistant Engineers.
Facts bearing on the question are as follows. In re-
sponse to an advertisement published in the Daily Tribune of
February 6, 1970 inviting applications for appointment as
Temporary Engineers on an ad-hoc basis, respondent No. 1
B.S. Jain was appointed as a Tem-
609
porary Engineer (ad-hoc) w.e.f. January 2, 1971 for a period
of six months i.e. after the coming into force of the Har-
yana Service of Engineers, Class II, Public Works Department
(Irrigation Branch) Rules, 1964 (’Class II Rules’ for
short). Prior to this, respondents No. 2 S.L. Gupta was also
appointed as a Temporary Engineer on an ad-hoc basis w.e.f.
May 19, 1969 by calling his name through the Employment
Exchange i.e. subsequent to the coming into force of the
Class II Rules. Their appointments were de hors the rules to
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meet the exigencies of service. In the letters of appoint-
ment issued to them, it was specified that their appointment
was purely on an ad-hoc basis for a period of six months
from the date of their joining the post on a fixed salary of
Rs.400 plus allowances and their services were terminable
without notice. They were specifically informed that the
appointment would not entitle them to any seniority or other
benefit under the service rules for the time being in force
and would also not count towards increment in their salary.
They were also intimated that the posts of Temporary Engi-
neers in Class II service would be advertised in due course
by the Haryana Public Service Commission and they should
apply for such posts through the Commission, and that if
they were not selected by the Commission, their services
would be liable to be terminated without notice. Also that
their inter-se seniority among the Temporary Engineers would
be in the order of merit in the list of candidates as set-
tled by the Commission. The services of respondents Nos. 1
and 2 were however continued by the State Government from
time to time, six months at a time, till the Secretary,
Haryana Public Service Commission by his letter dated July
8, 1973 addressed to the Commissioner and Secretary to the
State Government of Haryana, Public Works Department (Irri-
gation Branch) conveyed the approval of the Commission to
the ad-hoc appointment of 251 Temporary Engineers beyond the
period of six months till regular appointments were made to
the posts through the Commission. Accordingly, both these
respondents continued to hold the posts of Temporary Engi-
neers on ad-hoc basis till the end of the year 1974 i.e.
till they were recruited as Assistant Engineers through the
Public Service Commission on April 21, 1975 on regular
basis.
It appears that in response to an advertisement issued
by the Public Service Commission in October 1973, respond-
ents Nos. 1 & 2 appeared at a competitive examination along
with the appellants and respondents Nos. 5-24 and were
selected by the Public Service Commission for appointment as
Assistant Engineers under the Haryana Service of Engineers,
Class II, Public Works Department (Irrigation Branch) Rules,
1970. In the letter of appointment issued by
610
the Commissioner and Secretary to Government of Haryana
(Irrigation & Power Department) dated January 13, 1975 it
was specified that inter-se seniority of Assistant Engineers
would be determined on the basis of the combined merit list
prepared by the Public Service Commission: In the combined
merit list prepared by the Commission, respondents Nos. 1 &
2 were placed very much below the appellants and respondents
Nos. 5-24 being at serial Nos. 148 and 150 respectively. It
may be stated that the merit list prepared by the Commission
has never been questioned before us.
A few more facts. The State Government of Haryana by
order dated December 20, 1978 promoted 62 Assistant Engi-
neers including the appellants and respondents Nos. 5-24 as
Executive Engineers on a purely ad-hoc basis for a period of
six months subject to certain terms and conditions. namely:
(i) The promotions were subject to the approval of the
Public Service Commission as also to the claims of other
officers. (ii) Such promotions were not to give any right to
the officers for being appointed on a substantive basis as
Executive Engineers. And (iii) Such of the officers as had
not passed the departmental professional and revenue exami-
nations were required to pass such examinations within a
period of one year or otherwise they were liable to be
reverted to their original post. These ad-hoc promotions of
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the appellants and respondents Nos. 5-24 were made in relax-
ation of the provisions contained in rr.6(b) and 15 of the
Haryana Service of Engineers, Class I, Public Works Depart-
ment (Irrigation Branch) Rules, 1964. Presumably, the State
Government excluded from consideration the case of respond-
ents Nos. 1 & 2 for promotion because in the combined sen-
iority list they ranked below the appellants and respondents
Nos. 5-24 being placed at serial Nos. 148 and 150 respec-
tively.
The ad-hoc promotion of appellants and respondents Nos.
5-24 was assailed by respondents Nos. 1 & 2 by a petition
under Art. 226 of the Constitution filed before the Punjab &
Haryana High Court mainly on the ground that when qualified
persons like them i.e. respondents Nos. 1 & 2 were eligible
for being considered for promotion to the post of Executive
Engineer under r. 6(b), there was no justification whatever
for the State Government to grant general relaxation under
the proviso thereof to make the ineligible persons eligible
for promotion in denial of their claims. It was further
pleaded that the State Government having relaxed the condi-
tion of eligibility under the proviso to r.6(b) read with
the Explanation thereof as regards eight years service in
the case of promotion of the appellants and respon-
611
dents Nos. 5-24 as Executive Engineer on an ad-hoc basis,
failed to appreciate that respondents Nos. 1 & 2 who were
recruited along with them and had also put in more or less
31/2 years service as Assistant Engineers became entitled to
the benefit of such relaxation and the action of the State
Government in not considering their cases for such promotion
was wholly arbitrary and was tantamount to denial of equal
opportunity in the matter of employment in violation of
Arts. 14 and 16(1) of the Constitution. It was also pleaded
that the power conferred on the State Government to grant
relaxation under r.22 was not a general power but a power to
mitigate hardship in a particular case and thus the general
relaxation granted by the State Government to some of the
respondents who had not passed their departmental profes-
sional and revenue examinations was invalid. It was asserted
that the State Government and the Engineer-in-Chief, Irriga-
tion Department, Haryana had wrongly treated respondents
Nos. 1 & 2 as ineligible for promotion on the ground that
the period from January 1971 and May 1969 upto April 21,
1975 i.e. the period during which respondents Nos. 1 & 2
remained employed as Temporary Engineers on ad-hoc basis,
could not be treated as period in that class of service
within the meaning of r.6(b) i.e. in Class II service.
The specific stand taken by the State Government in the
return filed before the High Court was that respondents Nos.
1 & 2 were recruited to the post of Assistant Engineer on
April 21, 1975 and thus had only about 31/2 years service on
December 20, 1978 to their credit when appellants and re-
spondents Nos. 5-24 were promoted as Executive Engineers on
an ad-hoc basis. Prior to their appointment as Assistant
Engineers, respondents Nos. 1 & 2 had been appointed as
Temporary Engineers on ad-hoc basis de hors the rules and
under the terms of appointment they were not entitled to any
seniority or other benefit under the service rules as a
result of such appointment. Further, it was pleaded that
respondents Nos. 1 & 2 in the seniority list prepared by the
Public Service Commission were ranked junior to the appel-
lants and respondents Nos. 5-24 and therefore they were not
entitled to be considered for promotion.
A learned Single Judge (R.N. Mittal, J.) by his judgment
dated October 8, 1980 quashed the impugned order of the
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State Government making ad-hoc promotions of the appellants
and respondents Nos. 5-24 and directed the State Government
to reach a decision afresh as regards the ad-hoc promotions
with advertence to the observations made by him. In his
judgment the learned Single Judge repelled the contention of
respondents Nos. 5-24 for being considered for promo-
612
tion since none of them had completed eight years’ service
as Assistant Engineer on the ground that the State Govern-
ment was empowered in terms of proviso to r. 6(b) to relax
generally, in public interest, the condition regarding eight
years’ experience for reasons to be recorded in writing. He
found on perusal of the records placed before him that
reasons for the relaxation in public interest of the condi-
tion of eight years’ service imposed by r.6(b) had in fact
been recorded for reducing the period to 31/2 years in
consultation with the Finance Department. He accordingly
held that the ad-hoc promotion of the appellants and re-
spondents Nos. 5-24 was not invalid on that account. The
learned Single Judge however accepted the contention of
respondents Nos. 1 & 2 that they were entitled to the bene-
fit of the period of continuous officiation as Temporary
Engineers on an ad-hoc basis from January 1971 and May 1969
to April 21, 1975 in reckoning eight years’ experience in
that class of service within the meaning of r.6(b) i.e.
Class II service by reason of Explanation to r. 6(b) and
were therefore eligible for promotion to the post of Execu-
tive Engineer under r. 8(2) in view of the definition of the
expression ’Temporary Engineer’ contained in r.2(5), as
amended in 1975. He also upheld their contention that the
power conferred on the State Government under r.22 was not a
general power of relaxation but a power exercisable only to
mitigate any undue hardship in the case of a particular
individual and therefore the impugned order of the State
Government permitting relaxation in the case of respondents
Nos. 9, 10 and 11 Gyan Singh, P.D. Kadian and C.P. Goel as
regards the passing of the departmental professional and
revenue examinations as required by r. 15 was invalid. Upon
that view, the learned Single Judge allowed the Writ Peti-
tion and quashed the impugned order of the State Government
for the ad-hoc promotion of the appellants and respondents
Nos. 5-24 as Executive Engineers. Incidentally, the judgment
of the learned Single Judge leaves untouched the impugned
order insofar as it relates to the ad-hoc promotion of 37
Assistant Engineers to the post of Executive Engineer.
Thereupon, the appellants preferred an appeal under cl.
10 of the letters patent but the appeal was dismissed in
limine by a Division Bench (P.C. Jain & C.S. Tiwana, JJ) by
its order dated November 6, 1980. The learned Judges stated
that they were in full agreement with the view expressed by
the learned Single Judge. The appellants apparently advanced
a contention that the appointment of respondents Nos. 1 & 2
as Temporary Engineers on an ad-hoc basis was contrary to
Para 8.312 of the Manual of Administration and therefore the
period during which they worked as Temporary Engineers (ad-
hoc) could not
613
be taken into consideration. The learned Judges repelled the
contention on the ground that no such point was taken before
the learned Single Judge.
We must at the very outset observe that the judgment of
the learned Single Judge quashing the impugned order of the
State Government for the promotion of the appellants and
respondents Nos. 5-24 as Executive Engineers on an ad-hoc
basis on the ground that the State Government could not have
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relaxed the condition of passing the departmental profes-
sional and revenue examinations prescribed under r. 15 of
the Class I Rules by taking recourse to r. 22 which did not
confer a general power of relaxation can hardly be sus-
tained. We are afraid, the learned Single Judge was com-
pletely misled in taking the view that he did. This was not
a case of relaxation at all but a question of prescribing
the period during which such examination had to be cleared
as required under r. 15. R. 15 in terms provides that the
departmental professional and revenue examinations for
purposes of promotion to the Class I service have to be
passed within such period as may be prescribed. The word
’prescribed’ in r. 15 clearly empowers the State Government
to provide for the period during which the promoted officers
had to pass the departmental test. In terms of that rule,
the State Government by the impugned order directed that the
officers who had not passed the departmental professional
and revenue examinations were required to pass such examina-
tions within a period of one year otherwise they were liable
to be reverted to their original post. It must be said in
all fairness that learned counsel for respondents Nos. 1 & 2
did not support this part of the Judgment.
After having heard learned counselor the parties quite
at some length in a heating lasting over several days, we
feel that irrespective c f the merits of the contentions
advanced, no useful purpose would be served in maintaining
the judgment of the High Court insofar as it quashes the
impugned order of the State Government dated December 20,
1978 for the promotion of the appellants and respondents
Nos. 5-24 as Executive Engineers on an ad-hoc basis after a
lapse of such a long time as it would create unnecessary
administrative complications. During the heating we ex-
pressed our doubts about the wisdom of the High Court in
entertaining the Writ Petition of respondents Nos. 1 & 2
particularly when the impugned order of the State Government
making promotion of the 62 Assistant Engineers including the
appellants and respondents Nos. 5-24 as Executive Engineers
was purely on an ad-hoc basis for a period of six months and
expressly made subject to the fights of other officers.
Instead of interfering with the impugned
614
order of the State Government the proper course for the High
Court should have been to issue a direction to the State
Government to consider the cases of the eligible officers
including respondents Nos. 1 & 2 for ad-hoc promotion as
Executive Engineers if their turn was due for such promotion
according to their placement in the seniority list and it
should have in the meanwhile allowed the appellants and
respondents Nos.-5-24 to continue in their posts as Execu-
tive Engineers (ad-hoc) subject to the condition that while
considering their cases for promotion the State Government
would not take that circumstance into consideration that
they had continued to function as Executive Engineers on an
ad-hoc basis.
That course commends to us for another reason as well.
Although the High Court by its judgment and order dated
October 8, 1980 quashed the impugned order of the State
Government dated December 20, 1978 making the ad-hoc promo-
tions and issued a direction that the Government should
reach a decision afresh in the matter, the fact remains that
neither the judgment of the High Court nor the directions
made by it have taken effect. On the contrary, this Court
while granting special leave on January 14, 1981 stayed the
operation of the judgment of the High Court. As a conse-
quence, the result has been that the appellants and respond-
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ents Nos. 5-24 have continued to function as Executive
Engineers on an ad-hoc basis for the last about eight years
under the interim order of stay. Incidentally, the judgment
of the High Court leaves untouched the promotion of 37
Assistant Engineers and Executive Engineers. The State
Government will also have to give effect to the decision of
this Court in A.S. Parmar’s v. State of Haryana, [1984] 2
SCR 476 laying down that a degree in Engineering was ’not an
essential qualification for promotion of Assistant Engineers
in the Irrigation Branch to the cadre of Executive Engineers
in Class I service under r.6(b) of the Class I Rules and
therefore the Assistant Engineers who are diploma holders
are equally eligible for such promotion. The State Govern-
ment in the Public Works Department (Irrigation Branch) by a
notification dated June 22, 1984 purported to effect an
amendment to r.6(b) of the Class I Rules with a view to
nullify the decision of this Court in A.S. Parmar’s case. By
a separate judgment in the connected Writ Petitions Nos.
630-32/84 delivered today, we have struck down the impugned
notification as offending against Arts. 14 and 16(1) of the
Constitution and also as ultra vires the State Government by
reason of the proviso to s.82(6) of the Punjab Reorganisa-
tion Act, 1966. It appears that the State Government has
been treating a degree in Engineering referred to in Cl.(a)
r.6 as an essential qualification for promotion to the post
of
615
Executive Engineer in Class I service in the case of offi-
cers in Class II service presumably on the view expressed by
the Punjab & Haryana High Court in O.P. Bhatia v. State of
Haryana, ILR [1980] P & H 470. The controversy was settled
by the decision of this Court in A.S. Parmar’s case and it
overruled the decision of the High Court in O.P. Bhatia’s
case and held on a consideration of the relevant rules that
the qualification of degree in Engineering was not necessary
in the case of officers in Class II service for promotion to
the post of Executive Engineer. That apart, we must deal
with the appeal on merits as the judgment of the High Court
leaves much to be desired.
Issues raised in this appeal by special leave are of
far-reaching significance to the civil services. It involves
a claim by persons who had been in employment in the Govern-
ment service on a purely ad-hoc basis de hors the rules,
that they were entitled upon their absorption to the post on
a regular basis, to the benefit of the period of their
continuous officiation as temporary employees on ad-hoc
basis for determining their eligibility for promotion to the
higher grade or post. The questions presented are whether
the principles laid down in N.K. Chauhan & Ors. v. State of
Gujarat & Ors., [1977] 1 SCR 1037 and S.B. Patwardhan & Ors.
v. State of Maharashtra & Ors., [1977] 3 SCR 775 reiterated
in Baleshwar Das & Ors. v. State of Uttar Pradesh & Ors.,
[1981] 1 SCR 449 and subsequently followed in several deci-
sions, that ordinarily in the absence of any specific rule
of seniority governing the cadre or service, the length of
continuous officiation should be counted in reckoning sen-
iority as between direct recruits and promotees, should also
be extended in determining seniority of such adhoc employees
vis-a-vis direct recruits, and whether the failure on the
part of the Government to count the entire period of offici-
ation as such ad-hoc employees would be per se arbitrary and
irrational and thus violative of Arts. 14 and 16(1) of the
Constitution inasmuch as the temporary service in the post
in question was not for a short period intended to meet some
emergent or unforeseen circumstances, but to meet the exi-
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gencies of the service. It is asserted that the recent
pronouncement of this Court in the case of Narendra Chadha &
Ors. v. Union of India & Ors., [1986] 2 SCC 157 supports
this view. The argument at first blush appears to be plausi-
ble but on deeper consideration is not worthy of acceptance.
We proceed to give reasons therefor.
We are not aware of any principle or rule which lays
down that the length of continuous officiation/service is
the only relevant criterion in determining seniority in a
particular cadre or grade, irrespective of any specific rule
of seniority to the contrary. It is necessary to
616
emphasise that the principles laid down in the two leading
cases of N.K. Chauhan and S.B. Patwardhan, reiterated in
Baleshwar Das’s case and subsequently followed in several
decisions are not an authority for any such proposition.
These decisions particularly that in Baleswar Das’s case
clearly lay down that ordinarily and in the absence of any
specific rule of seniority governing the cadre or service,
the length of continuous officiation should be counted in
reckoning seniority as between direct recruits and promo-
tees. These authorities nowhere lay down that the same
principle i.e. the length of continuous officiation must be
the sole guiding factor and the only criterion in determin-
ing seniority of such ad-hoc employees vis-a-vis direct
recruits.
The contention on behalf of the appellants firstly is
that the High Court was dearly in error in holding that the
entire period of service of respondents Nos. 1 & 2 as Tempo-
rary Engineers on ad-hoc basis i.e. the period from January
1971 and May 1969 to April 21, 1975 had to be counted not
only for purposes of their seniority under r.8(2) of the
Class I Rules but also for the purpose of their eligibility
for promotion to the post of Executive Engineers under
r.6(b). It is said that the High Court failed to appreciate
that respondents Nos. 1 & 2 were not recruited as Temporary
Engineers under the instructions contained in the Manual of
Administration issued under the Punjab Service of Engineers,
Class II, Public Works Department, (Irrigation Branch)
Rules, 1941 or under the Punjab Service of Engineers, Class
II, Public Works Department (Irrigation Branch) Rules, 1970,
but their appointment as Temporary Engineers was purely on
an ad-hoc basis de hors the rules and therefore they did not
fail within the ambit of the definition of the expression
’Class II Service’ as defined in r. 2(5), as amended in
1975. Secondly, the High Court failed to take into account
the fact that respondents Nos. 1 & 2 became members of Class
II service only on April 21, 1975 when they were recruited
as Assistant Engineers on a regular basis through the Public
Service Commission. Till then they did not answer the de-
scription of ’Temporary Engineers’ as defined in r.2(5).
They did not even figure in the notification dated May 18,
1982 issued by the State Government under r.3 constituting
the service of Engineers as Class II service w.e.f. December
25, 1970. It must therefore logically follow that the serv-
ice rendered by them as Temporary Engineers on ad-hoc basis
prior to their recruitment as Assistant Engineers in 1975
could not be treated to be service in that class within the
meaning of r.6(b) of the Class I Rules. Likewise, r.8(2)
which speaks of any service rendered as Temporary Engineer
must be construed accordingly as meaning service rendered by
a Temporary
617
Engineer recruited in the manner provided by the instruc-
tions contained in Manual of Administration issued under the
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1941 Rules or recruited as such under the 1970 Rules. Last-
ly, the decision in BaleShwar Das’s case does not lay down
any proposition that persons employed on a purely ad-hoc or
fortuitous basis like respondents Nos. 1 & 2 are entitled as
a matter of law to the benefit of their period of ad-hoc
service and the two later decisions in G.P. Doval & Ors., v.
The Chief Secretary, Government of Uttar Pradesh & Ors.,
[1985] 1 SCR 70 and Narendra Chadha are of little assist-
ance. These submissions, in our opinion, must prevail.
In reply, the main contention of learned counsel for
respondents Nos. 1 & 2 is that respondents Nos. 1 & 2 upon
their absorption to the post of Assistant Engineer on a
regular basis on April 21, 1975 were entitled to the benefit
of the entire period of officiation as Temporary Engineers
on an ad-hoc basis i.e. the period from January 1971 and May
1969 to April 21, 1975 and the failure of the Government to
count such period of their ad-hoc service was per se arbi-
trary, irrational and thus violative of Arts. 14 and 16(1)
of the Constitution inasmuch as the service rendered by them
as Temporary Engineers (ad-hoc) was not for a short period
intended to meet some emergent or unforeseen circumstances,
but to meet the exigencies of the service and there is no
reason why the principles laid down in Baleshwar Das’s case
should also not be extended in determining the seniority of
such ad-hoc employees vis-a-vis direct recruits. Secondly,
he contends that exercise of the power of relaxation of the
condition of eight years’ service for purposes of eligibili-
ty conferred on the State Government under the proviso to
r.6(b) is conditioned by the obligation to record reasons in
writing which requirement was mandatory. There was failure
on the part of the Government to record reasons therefor or
to indicate any basis to show that such relaxation was in
public interest. Further, the words ’Class II Service’ in
r.8(2) must bear the same meaning as the expression ’Class
II Service’ as defined in r.2(5). The artificial definition
of ’Class II Service’ introduced by amendment of r. 2(5) in
1975 was obviously to bring persons who were not Assistant
Engineers i.e. members of Class II service within the zone
of consideration for purposes of promotion to the post of
Executive Engineer under r.6(b) of Class I Rules. Further-
more, the State Government having relaxed the condition of 8
years’ service by recourse to the proviso to r.6(b), re-
spondents Nos. 1 & 2 were similarly situate as’ the appel-
lants and respondents Nos,5-24 as they were all recruited
together as Assistant Engineers in Class II service in 1975
and they had all rendered about 31/2 years’ service in that
class and therefore failure on the part of the State Govern-
ment to consider the case of. respondents Nos. 1 & 2 for
618
purposes of promotion to the post of Executive Engineer was
tantamount to the total exclusion of a class within a class
and was thus per se discriminatory. Lastly, the action of
the State Government in making ad-hoc promotion of the
appellants and respondents Nos..5-24 was wholly mala fide.
Learned counsel wanted us to draw an inference of mala fide
from the fact that the Private Secretary to Chief Minister
was present at a meeting held in the room of the Irrigation
Minister where the list of promotion was settled. It is
suggested that initially the names of respondents Nos. 1 & 2
figured in the list but later on wholly extraneous consider-
ations their names were deleted.
It would be convenient at this stage to refer to the
relevant provisions of the Punjab Service of Engineers Class
I, P.W.D. (Irrigation Branch) Rules, 1964, as amended in
1975. The amendment effected in 1975 substituted a new
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r.2(5) for the existing r.2(5) and it defines the expression
’Class II Service’ as follows:
"2(5). ’Class II Service’ shall, for the
purpose of promotion to the service, comprises
of members of the Haryana Service of Engi-
neers, Class II (Irrigation Branch); Temporary
Engineers, Officiating Sub-Divisional Officers
and Officiating Assistant Design Engineers,
except those promoted in excess of the quota
fixed under rule 6 of the Haryana Service of
Engineers, Class II, Public Works Department
(Irrigation Branch) Rules, 1970."
The qualifications of persons eligible for appointment are
prescribed in r.6 which is in these terms:
"6. Qualifications: No person shall be ap-
pointed to the service unless he--
(a) Possesses one of the University Degrees or
other qualifications prescribed in Appendix B
of these Rules;
Provided that Government may waive
this qualification in the case of a particular
officer belonging to Class II Service;
(b) In case of an appointment by promotion
from Class II Service, has completed in that
class of service for a period of ten years
from the commencement of these rules, six
years service and after that period eight
years service;
619
Provided that if it appears to be
necessary to promote an officer in the public
interest, the Government may, for reasons to
be recorded in writing either generally or in
any individual case reduce the period of six
or eight years to such extent as it may deem
proper in consultation with the Finance De-
partment.
Explanation: For the purpose of this clause in
computing of the period of six or eight years
any service rendered as a Temporary Engineer
shall be taken into account".
We may next set out r.8 which deals with the method of
promotion:
"8. Appointment by promotion: (1) A Committee
consisting of the Chairman of the Public
Service Commission and where the Chairman is
unable to attend any other member of the
Commission representing it, the Secretary,
P.W.D. (Irrigation Branch) and the Chief
Engineer, Punjab, P.W.D. Irrigation Branch
shall be constituted.
(2). The Government shall prepare a list of
eligible and suitable persons for promotions
in order of their seniority in Class II Serv-
ice which shall be reckoned:
(a) in the case of a member of the Haryana
Service of Engineers, Class 11 (Irrigation
Branch) from the date of his continuous offi-
ciation as Sub-Divisional Officer or Assistant
Design Engineer or appointment as Temporary
Engineer, as the case may be:
(b) in the case of a Temporary Engineer from
the date of his appointment as such."
As a matter of construction, the words ’Class II serv-
ice’ in r.8(2) introduced by amendment in 1975 must be
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construed to have the same meaning as the expression ’Class
II service’ as defined in r.2(5). We find the language
employed by the framers of the rules in the definition
clause in r.2(5) has been departed from in the definition of
the expression ’Class II service’ and it is generally but
not always a fair presumption that the alteration in the
language used in the new definition in r.2(5) was intention-
al. Prior to the amendment in 1975, the expression, ’Class
II Service’ as defined in r.2(5) meant the members of Class
II service including Temporary Engineers. As the State stood
620
in need of many more Executive Engineers it became essential
to take steps 3 recruit not only persons who strictly belong
to Class II Service proper but also to bring within the zone
of consideration others who are not members of Clause II
Service e.g. Offg. Sub-Divisional Officers and Offg. Assist-
ant Design Engineers who would not be so included. The key
to the interpretation of the definition clause in r.2(5) is
the words "for the purpose of promotion". The effect of the
enlarged definition of Class II Service in r.2(5) is that
these words when found in the Act must, for the purpose of
promotion, be understood in that context in a certain sense
i.e. to include not only members of Class II Service includ-
ing Temporary Engineers but also Offg. Sub-Division Officers
and Offg. Assistant Design Engineers who, but for the inter-
pretation clause, would not be so included. That would be in
consonance with the purpose and object of the amendment.
There is reason why ’the words ’Class II Service’ in r.8(2)
introduced in 1975 must bear the same meaning as the expres-
sion ’Class II Service’ as defined in r.2(5) as both the
provisions deal with the same subject i.e. promotion of
members of Class II Service to the post of Executive Engi-
neer in Class I Service. The mode of promotion to the post
of Executive Engineer is as laid down in r.8(2). Now, r.8(1)
remains unaltered. R.8(1) directs that a committee consist-
ing of the Chairman of the Public Service Commission or
where the Chairman is unable to attend any other member of
the Commission representing it, Secretary to the. Govern-
ment, P.W.D. (Irrigation Branch), and the Chief Engineer,
Punjab, Irrigation Branch shall be constituted. Under r.8(2)
introduced in 1975, the Government has to prepare a list of
eligible and suitable persons for promotion in order of
their seniority in Class II Service which shall be reckoned
(a) in the case of a member of the Haryana Service of Engi-
neers, Class II, Irrigation Branch, from the date of his
continuous officiation as Sub-Divisional Officer or Assist-
ant Design Engineer or appointment as Temporary Engineer, as
the case may be. (b) In the case of a Temporary Engineer
from the date of his appointment as such. These provisions
can lead to no other conclusion but that the list of eligi-
ble and suitable persons for promotion has to be drawn not
only comprising of regular members of Class II SerVice
including Temporary Engineers in order of their seniority
but also of Offg. Sub-Divisional Officers or Offg. Assistant
Design Engineers in that class of service from the date
specified therein. Apparently, the requirements of rr.8(1)
and 8(2) have not been complied with. All that exists is the
combined seniority list of Assistant Engineers belonging to
Class II Service in order of their seniority prepared by the
Public Service Commission which incidentally has never been
challenged.
621
The meaning of the word ’as’ in the collocation of the
words ’any service rendered as a Temporary Engineer’ in
Explanation to r.6(b) of the Class I Rules must obviously
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mean ’in the capacity of’. In Dr. Asim Kumar Bose v. Union
of India & Ors., [1983] 1 SCC 345 the question was whether
the appellant who was a Radiologist in the Maulana Azad
Medical CoLlege which was a post belonging to Specialist
Grade II could be appointed to the post of Professor of
Radio-Therapy in that College by direct recruitment under
r.8(2) of the Central Health Service (Amendment) Rules,
1966. In 1971 there were certain amendments in the Rules
prescribing the mode in which the posts of Professor and
Associate Professor could be filled in and paragraphs 2(b)
and 3 of Annexure I to the Second Schedule and sub-r.(2a) to
r.8 were inserted which brought about a change. These amend-
ments brought about a change inasmuch as they provided for a
vertical channel of promotion to the teaching post upto the
post of Associate Professor. At p.363 of the Report this
Court referred to the report of the Third Pay Commission
where it was observed at p. 173.
"While the Specialists on the teaching side
can hold posts of hospital specialists, the
latter cannot be promoted to teaching posts
because of lack of teaching experience."
Presumably, the Ministry of Health on that view held that
the word ’as’ in paragraphs 2(b) and 3 of Annexure I to the
Second Schedule and sub-r. (2a) of r.8 makes holding of a
post in the cadre a condition precedent to the post of a
Professor or an Associate Professor. In that context, it was
observed:
Normally, a Professor or an Additional Profes-
sor in a medical college or a teaching insti-
tution can be appointed by direct recruitment
from amongst persons holding the post of
Associate Professor or Assistant Professor in
the concerned speciality in a medical college
or a teaching institution having at least six
years’ teaching experience out of 12 years;
standing in the Grade through the Union Public
Service Commission. An Associate Professor in
the medical coLlege or a teaching institution
can only be promoted from amongst persons
holding the post of Reader or Assistant Pro-
fessor having at least five years’
teaching experience in’ the concerned special-
ity by the Departmental Promotion Committee.
We are inclined to the view that the word "as"
in the collocation of the words used "at least
six years’ experience as Associate
Professor/Assistant Profes-
622
sor/Reader" in paragraph 2(b) and of the words
"at least five years’ experience as
Reader/Assistant Professor" in paragraph 3 and
sub-rule (2-A) of Rule 8 must be interpreted
in its ordinary sense as meaning teaching
experience gained "in the capacity of". In
Black’s Law Dictionary, 5th Edn., p. 104, the
meaning of the word "as" as given is: "Used as
an adverb, etc., means like, similar to, of
the same kind, in the same manner, in the
manner in which." In Shorter Oxford Diction-
ary, 3rd Edn., p. 111, the word "as" is stated
to mean: "The same as, in the character,
capacity, role of".
In spite of all this, the contention of respondents Nos. 1 &
2 that they were entitled to the benefit of the period of
service rendered by them as Temporary Engineer on an ad-hoc
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basis w.e.f. January 2, 1971 and May 19, 1969 respectively
prior to their appointment as Assistant Engineers on regular
basis on April 21, 1975 for purposes of reckoning their
eligibility under r.6(b) read with the Explanation thereto
of the Class I Rules as also for purposes of their seniority
in the cadre of Assistant Engineers, cannot prevail. They
were not recruited under paragraphs 8.312 to 8.316 of the
Manual of Administration, Public Works Department. In the
erstwhile State of Punjab there was a distinct class of
Engineers designated as Temporary Engineers. All persons
appointed as Temporary Engineers had to face the Public
Service Commission for selection to the post under rr.4 and
5 of the Punjab Service of Engineers, Class II. P.W.D
(Irrigation Branch) Rules, 1941. Under the Rules the term
’Temporary Engineer’ was defined in r.2(f) to mean an engi-
neer in the service of the Public Works Department, Punjab
whose appointment was temporary within the meaning of the
Fundamental Rules, was pensionable and who was not a member
of any regular service. The word ’service’ as defined in
r.2(g) of the Rules meant the Punjab Service of Engineers,
Class II, Irrigation Branch. R.5 provided that no Temporaty
Engineer could be taken into service or member of the Over-
seers Engineering Service, Punjab promoted unless he had
been declared by the Commission on the report of the Chief
Engineer to be fit for the service, was serving the Depart-
ment and held an appointment for not less than two years
continuously before the date of entry into the service.
Next came the Punjab Service of Engineers, Class II,
P.W.D. (Irrigation Branch) Rules, 1970. The expression
’member of service’ was defined in r.2(12) to mean an offi-
cer appointed substantively to a cadre post. The definitions
of the word ’service’ and of the term
623
’Temporary Engineer’ in r.2(15) and (16) remained the same
except for the difference that the word ’temporary’ carried
the meaning as given in the Civil Service Regulations in
place of the Fundamental Rules. R.6 provided for the manner
of recruitment of Temporary Engineers from different
sources, in the proportions and the order indicated. Sub-
r.(3) thereof provided that in case a candidate was not
available from sources 1 and 3 i.e. by direct recruitment or
by promotion, and a person had to be appointed-in public
interest, as a stop-gap arrangement, the period of service
rendered by such person shall not be reckoned for the pur-
pose of seniority. Sub-r. (4) provided that the Government
could fill a short term vacancy in the exigencies of public
service, after recording specific reasons, for the period
not exceeding six months from the Overseers Engineering
Service, Irrigation Branch. It is quite apparent under these
rules that appointment of respondents Nos. 1 & 2 as Tempo-
rary Engineers on an ad-hoc basis was de hors the rules.
It may seem to be some illogical that though respondents
Nos. 1 & 2 were appointed as Temporary Engineers on an ad-
hoc basis, they should be deprived of the period of their
officiation as such till they were absorbed to the post of
Assistant Engineer on a regular basis through the Public
Service Commission on April 21, 1975. That is a legal conse-
quence which cannot be avoided on well-settled principles.
In their case the length of continuous officiation cannot be
the basis for reckoning their seniority since they never
became members of Class II Service prior to their absorp-
tion. On the terms of appointment of respondents Nos. 1 & 2,
it was specifically provided that their appointment was
purely on an ad-hoc basis for a period of six months from
the date of their joining the post on a fixed salary of
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Rs.400+ allowances and that their services were liable to be
terminated without notice. It was also specifically men-
tioned that the appointment as such Temporary Engineers on
ad-hoc basis would not count towards seniority or increment
in their salary. It was further stated that the posts of
Temporary Engineers in Class II Service would be advertised
in due course by the Public Service Commission and that if
they were not selected by the Commission, their services
would be terminated without notice- They are also intimated
that their inter-se seniority among the Temporary Engineers
so recruited would be in the order of merit in the list of
candidates as settled by the Commission. It is common ground
that respondents Nos. 1 & 2 were not recruited through the
Public Service Commission. It was not till July 8, 1973 that
the Secretary to the Commission conveyed to the State Gov-
ernment the approval of the Commission to the ad-hoc ap-
pointment of 251
624
Temporary Engineers beyond the period of six months till
regular appointments were made in the posts of Assistant
Engineers through the Commission. These are the facts on
which there is no doubt or difficulty as to the principles
applicable.
According to the accepted canons of service jurispru-
dence, seniority of a person appointed must be reckoned from
the date he becomes a member of the service. The date from
which seniority is to be reckoned may be laid down by rules
or instructions (a) on the basis of the date of appointment
(b) on the basis of confirmation (c) on the basis of regula-
tion of service (d) on the basis of length of service, or
(e) on any other reasonable basis. It is well-settled that
an ad-hoc or fortuitous appointment on a temporary or stop-
gap basis cannot be taken into account for the purpose of
seniority even if the appointee was qualified to hold the
post on a regular basis, as such temporary tenure hardly
counts for seniority in any system of service jurisprudence.
In somewhat similar circumstances, in the case of State of
Gujarat v. C.G. Desai & Ors., [1974] 2 SCR 255 the question
for consideration was whether in the case of Deputy Engi-
neers directly recruited through the Public Service Commis-
sion by competitive examination, the service, if any, ren-
dered by them as officiating Deputy Engineers prior to their
appointment to Class II Service i.e. during the pre-selec-
tion period, could be taken into account for purposes of
their eligibility for promotion as Executive Engineers under
r.7(2) of the Bombay Engineering Service Rules, 1960 which
provided for a period of 7 years’ experience in Class II
Service. The Government’s stand was that the service ren-
dered by the direct recruits prior to their appointment to
the Class II Service could not be taken into account in
computing their eligibility of 7 years’ experience in that
class of service and the Court upheld the stand. It was
contended on behalf of the promotees that if for promotion
to the post of Executive ’Engineer in Class I Service the
period of eligibility of 7 years’ experience in Class II
Service was to start from the date of absorption in that
class of service, then, for most of them there would be rare
chance of ever getting promotion as officiating Executive
Engineers and as many of them had less than 7 years to go
before attaining the age of superannuation. The contention
was that r.7(2) of the Rules did not permit discrimination
between the promotees and direct recruits in the matter of
computing 7 years’ service for further promotion as offici-
ating Executive Engineers. The contention was repelled on
the ground that direct recruits and promotees in Class II
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22
Service constituted two distinct groups or classes and the
classification was based on intelligible differentia, and it
was observed:
625
"If a person, like any of the respondents, to
avoid the long tortuous wait leaves his posi-
tion in the ’never-ending’ queue of
Temporary/Officiating Deputy Engineers etc.
looking for promotion, and takes a short cut
through the direct channel, to Class II Serv-
ice, he gives up once for all, the advantages
and disadvantages that go with the channel of
promotion and accepts all the handicaps and
benefits which attach to the group of direct
recruits. He cannot, after his direct recruit-
ment claim the benefit of his preselection
service and thus have the best of both the
worlds. It is well-settled that so long as the
classification is reasonable and the persons
falling in the same class are treated alike,
there can be no question of violation of the
constitutional guarantee of equal treatment."
In taking that view, the Court avoided a doctrinaire ap-
proach and approached the problem from a pragmatic view. It
was said:
"If the claim of the respondents to the count-
ing of their pre-selection service is conced-
ed, it will create serious complications in
running the administration; it will result in
inequality of treatment rather than in remov-
ing it. If the pre-selection service as Offi-
ciating Deputy Engineers of direct recruits
having such service, is taken into account for
the purpose of promotion, it would create two
classes amongst the same group and result in
discrimination against those direct recruits
who had no such pre-selection service to their
credit."
It would be repugnant to all accepted concepts of serv-
ice jurisprudence if the claim of persons like respondents
Nos. 1 & 2 who were employed as Temporary Engineers on ad-
hoc basis de hors the rules for six months at a time were
extended the benefit of their continuous officiation as such
ad-hoc employees in reckoning their seniority vis-a-vis
direct recruits in considering their eligibility under
r.6(b) of the Class I Rules for promotion to a higher grade
or post of Executive Engineer. In A.P.M. Mayakutty etc. v.
Secretary, Public Service Department, [1977] 2 SCR 937 the
question was whether the period of service rendered by such
ad-hoc employees appointed under r. 10(a) (i)(1) of the
Madras State & Subordinate Services Rules purely on an ad-
hoc basis and as matter of stop-gap arrangement, were enti-
tled to count for the purpose of seniority, their period of
service on ad-hoc basis during which they served in a stop-
gap arrangement. It was held
626
that such service could not be taken into account for the
purpose of seniority from the date of their initial appoint-
ment. The Court speaking through Chandrachud, CJ. after
referring to the provision contained in r. 10(a)(i)(1) of
the Rules, stated:
"This provision contemplates the making of
temporary appointments when it is necessary in
the public interest to do so* to an emergency
*owing which has arisen for filling a vacancy
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immediately. Such appointments, in terms, are
permitted to made otherwise than in accordance
with the rules. The letters of appointment
issued to the appellants mention expressly
that they were appointed under rule
10(a)(i)(1), that the appointments were
"purely temporary necessitated on account of
the non-availability of regularly selected
candidates conferring no claim for future
appointment as Junior Engineers .... and
that the appointment is liable to be terminat-
ed at any time without previous notice." In
face of the provisions of the rule and the
terms of the appointment it seems to us clear
that the appellants were appointed purely as a
matter of stop-gap or emergency arrangement.
Since such service cannot be taken into ac-
count for purposes of seniority, the appel-
lants cannot contend that the entire service
rendered by them from the date of their ini-
tial appointment must count for purposes of
seniority."
The Court distinguished the case of C.P. Damodaran Nayar v.
State of Kerala & Ors., [1974] 2 SCR 867 on the ground that
the temporary service rendered by a District Munsiff re-
cruited in a regular manner through the Public Service
Commission could not, by any stretch of imagination, be
considered to be purely as a matter of fortuitous or stop-
gap arrangement. The distinguishing features in Mayakutty’s
case, in the words of Chandrachud, CJ. were:
"The distinguishing feature of that case,
which is highlighted in the judgment of the
Court, is that the appellant therein was
"appointed in a regular manner through the
Public Service Commission" and therefore his
appointment could not "by any stretch of
imagination" be described as having been made
to fill a purely stop-gap or fortuitous vacu-
um. In our case the initial appointment was
not only made without any reference to the
Public Service Commission but the various
rules and the terms of the appellants’
627
appointment to which we have drawn attention
show that the appellants were appointed purely
as a matter of fortuitous or stop-gap arrange-
ment. The concurrence of the Public Service
Commission to the continuance of the appel-
lants in the posts filled by them first after
the expiry of three months and then after the
expiry of one year, was obtained not with a
view to regularising the appointments since
their inception but for the purpose of meeting
the requirements of a provision under which
such concurrence is necessary to obtain if an
appointment made without selection by the
Public Service Commission is required for any
reason to be continued beyond three months or
a year."
That precisely is the case here. It must therefore be held
that the period of service rendered by persons like respond-
ents Nos. 1 & 2 who were appointed on ad-hoc basis purely as
a stop-gap arrangement for six months at a time de hors the
rules, cannot be considered for purposes of their seniority
in Class II Service or in reckoning their eligibility of 8
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years’ service in that class of service under r.6(b) of
Class I Rules.
We feel it necessary to emphasise that the principles
laid down by this Court in the two cases of N.K. Chauhan and
S.B. Patwardhan which were reiterated in Baleshwar Das’s
case and subsequently followed in several other cases do not
lay down any principle to the contrary. These cases are not
an authority for the proposition relied upon. On the con-
trary, they clearly proceed on the principle that persons
appointed on an ad-hoc basis or for fortuitous reasons or by
stop-gap arrangement, constitute a class which is separate
and distinct from those who are appointed to posts in the
service in strict conformity with the rules of recruitment.
In the case of S.B. Patwardhan, Chandrachud, CJ. observed:
"We however hope that the Government will bear
in mind the basic principle that if a cadre
consists of both permanent and temporary
employees, the accident of confirmation cannot
be an intelligible criterion for determining
seniority as between direct recruits and
promotees. All other factors being equal,
continuous officiation in a non-fortuitous
vacancy ought to receive due recognition in
determining rules of seniority as between
persons recruited from different sources, so
long as they belong to the same cadre,
628
discharge similar functions and bear similar
responsibilities."
In Baleshwar Das’s case, Krishna lyer, J. affirmed the
principle in his own charismatic and picturesque language:
"We must emphasise that while temporary and
permanent posts have great relevancy in regard
to the career of government servants, keeping
posts temporary for long, sometimes by annual
renewals for several years, and denying the
claims of the incumbents on the score that
their posts are temporary makes no sense and
strikes us as arbitrary, especially when both
temporary and permanent appointees are func-
tionally identified. If, in the normal course,
a post is temporary in the real sense and the
appointee knows that his tenure cannot exceed
the post in longevity, there cannot be any-
thing unfair or capricious in clothing him
with no fights. Not so, if the post is, for
certain departmental or like purposes, de-
clared temporary, but it is within the ken of
both the government and the appointee that the
temporary posts are virtually long-lived. It
is irrational to reject the claim of the
’temporary’ appointee on the nominal score of
the terminology of the post. We must also
express emphatically that the principle which
has received the sanction of this Court’s
pronouncements is that officiating service in
a post is for all practical purposes of sen-
iority as good as service on a regular basis.
It may be permissible, within limits, for
government to ignore officiating service and
count only regular service when claims of
seniority come before it, provided the rules
in that regard are clear and categories and do
not admit of any ambiguity and cruelly arbi-
trary cut-off of long years of service does
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not take place or there is functionally and
qualitatively, substantial difference in the
service rendered in the two types of posts.
While rules regulating conditions of service
are within the executive power of the State or
its legislative power under proviso to Article
309, even so, such rules have to be reasona-
ble, fair and not grossly unjust if they are
to survive the test of Articles 14 and 16."
We must also refer to the decision in A. Janardana v. Union
of India & Ors., [1983] 3 SCC 60 1 where Desai, J. had
occasion to observe:
629
"In other words after having rendered service
in a post included in the service, he is
hanging outside the service, without finding a
berth in service, whereas direct recruits of
1976 have found their place and berth in the
service. This is the situation that stares
into one’s face while interpreting the quota-
rota rule and its. impact on the service of an
individual. But avoiding any humanitarian
approach to the problem, we shall strictly go
by the relevant Rules and precedents and the
impact of the Rules on the members of the
service and determine whether the impugned
seniority list is valid or not. But, having
done that we do propose to examine and expose
an extremely undesirable, unjust and inequita-
ble situation emerging in service jurispru-
dence from the precedents namely, that a
person already rendering service as a promotee
has to go down below a person who comes into
service decades after the promotee enters the
service and who may be a schoolian, if not in
embryo, when the promotee on being promoted on
account of the exigencies of service as re-
quired by the Government started rendering
service. A time has come to recast service
jurisprudence on more just and equitable
foundation by examining all precedents on the
subject to retrieve this situation."
To the same effect are the decisions in O.P. Singla v. Union
of India, [1984] 4 SCC 450; G,S. Larnba v. Union of India,
[1985] 2 SCC 604; P.S. Mahal v. Union of India, [1984] 4 SCC
545 and Pran Krishna Goswami & Ors. v. State of West Bengal
& Ors., [1985] Suppl. SCC 221. It must now be taken as
well-established after these decisions that in the absence
of any other valid principle of seniority, the inter-se
seniority between direct recruits and promotees should as
far as possible be determined by the length of continuous
service whether temporary or permanent in a particular grade
or post (this should exclude periods for which an appoint-
ment is held in a purely stop-gap or fortuitous
arrangement). No doubt, there are certain observations in
the two cases of G.P. Doral and Narender Chadha which seem
to run counter to the view we have taken, but these deci-
sions turned on their own peculiar facts and are therefore
clearly distinguishable and they do not lay down any rule of
universal application.
For all these reasons, the appeal succeeds and is al-
lowed. The judgment and order of the High Court quashing the
impugned notification of the State Government dated December
20, 1978 making
630
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ad-hoc promotions of the appellants and respondents Nos. 5-
24 are set aside. Instead, we direct that the impugned order
of the State Government making ad-hoc promotions of 62
Assistant Engineers including the appellants and respondents
Nos. 5-24 as officiating Executive Engineers will stand and
they shall continue to function as such, subject to the
terms and conditions contained in the aforesaid order till
the process of making appointments by promotion to these
posts is completed. We hope and trust that the State Govern-
ment will strike a just balance between the competing claims
of these 62 Assistant Engineers promoted as Executive Engi-
neers on ad-hoc basis, and persons like respondents Nos. 1 &
2 appointed as Temporary Engineers on an ad-hoc basis who
could at the most claim that they should be given the bene-
fit of the period of service from April 21, 1975 when they
were recruited as Assistant Engineers through the Public
Service Commission, provided they satisfy the test of eligi-
bility of 8 years’ experience in that class of service,
while considering the cases of all eligible members of Class
II Service for promotion to the post of Executive Engineer
in Class I Service in accordance with law and will complete
the process of appointment within six months from today.
There shall be no order as to costs.
S.R. Appeal
allowed.
631