Full Judgment Text
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PETITIONER:
STATE OF WEST BENGAL AND ORS. ETC. ETC.
Vs.
RESPONDENT:
AGHORE NATH DEY AND ORS. ETC. ETC.
DATE OF JUDGMENT02/04/1993
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SAWANT, P.B.
KASLIWAL, N.M. (J)
CITATION:
1993 SCR (2) 919 1993 SCC (3) 371
JT 1993 (2) 598 1993 SCALE (2)365
ACT:
Civil Services.
West Bengal Engineering Services Rules 1959.
Rules 4,9,10-12--Overseer estimators appointed Sub Assistant
Engineer appointed temporary Assistant Engineers on ad hoc
basis--Claim to seniority based on direct recruitment as
Assistant Engineer or as promotee from cadre of Sub
Assistant Engineer--Tenability of--period of ad hoc
appointment whether be taken into account for seniority.
HEADNOTE:
By Notification No. 94 dated 20th August, 1959 the Governor
of West Bengal made Rules under the proviso to Article 309
of the Constitution of India for the regulation of
recruitment to the Engineering Services under the Department
of Works and Buildings of the State Government.
Under these Rules, recruitment to the permanent posts of
Assistant Engineers was to be made under Rule 9, while Rule
10 governed recruitment to the temporary posts of Assistant
Engineers. Rule 11 provided for emergency appointment by
advertisement and interview through the State Public Service
Commission, on the basis of a competitive examination
conducted by the Service Commission. Accordingly, any
appointment to a permanent or temporary post of Assistant
Engineer, which was not made in accordance with Rule 9, or
10 or 11 was, therefore, not in accordance with these
Service Rules.
The respondents in the appeals were petitioners in the writ
petitions in the High Court.. They were duly appointed Sub-
Assistant Engineers who were earlier called Overseer
Estimators and though Initially diploma holders having
obtained the prescribed degree were eligible for appointment
as Assistant Engineers. They were appointed temporary
Assistant Engineers on ad hoc basis, initially for a period
of six months in the PWD 1974 to 1976 and in the Irrigation
and Waterways Department
920
between 1972 to 1978. They claimed seniority on the basis
of their direct recruitment to the post of Assistant
Engineer, and not as promotee from the next below cadre of
Sub-Assistant Engineers In the promotion quota specified for
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them in the Rules. Their initial ad hoc appointment was
extended periodically upto 26.2.1980, and during this
period, several opportunities were given to these persons to
appear before the Public Service Commission to satisfy the
condition attached to the ad hoc appointment, but none of
them complied with the requirement, declining throughout to
appear before the Public Service Commission. The State
Government requested the Public Service Commission to permit
regularisation of the services of these ad hoc appointees as
Assistant Engineers, without being selected for regular
appointment by the Public Service Commission but the Public
Service Commission by several letters turned down that re-
quest. The Government, finally took the decision on 26th
February, 1980 to regularise these persons as Assistant
Engineers, and, consequently took three simultaneous steps
on 26-2-1980 viz. (1) the requirement in the rules of
consultation with the Public Service Commission being
dispensed with, (2) absorbtion as temporary Assistant
Engineers and (3) a service rule under Article 309 providing
for seniority as temporary Assistant Engineers with effect
from the same date i.e. 26-2-1980. This statutory rule
clearly provided, that all persons appointed regularly in
accordance with rules, prior to 26-2-1980, as Assistant
Engineers would rank above the ad hoc appointees so absorbed
with effect from 26-2-1980 and the Government implemented
this decision.
The question before the High Court related to the fixation
of seniority of these Sub Assistant Engineers appointed ad
hoc temporary Assistant Engineers for a specified period in
the PWD and the Irrigation and Waterways Department, vis-a-
vis the direct recruits in the cadre of Assistant Engineers
appointed regularly according to rules in the department
prior to the regularisation of the ad hoc appointees.
The writ petitions were dismissed by a Single Judge of the
High Court, but the writ appeals were allowed by the
Division Bench resulting in grant of the relief claimed by
the ad hoc appointees.
In the appeals to this Court by the State of West Bengal,
and the adversely affected direct recruits who were
respondents in the writ petitions filed by the ad hoc
appointees, it has been urged that the claim of
921
the respondents for seniority being given to them
retrospectively from the date of their initial ad hoc
appointment, made contrary to the rules, in spite of their
regularisation being made expressly from 26-2-80, is wholly
untenable and against the decisions of this Court
particularly the Constitution Bench decision on Direct
Recruit Class II Engineering Officers’ Association and Ors.
v. State of Maharashtra and Ors.,[1990] 2 SCR 900 = [1990] 2
SCC 715, and that the Division Bench of the High Court com-
mitted an error in reversing the judgment of the Single
judge Bench which had dismissed the writ petitions.
The appeals were contested by the respondents by submitting
that the initial ad hoc appointment of the writ petitioners
was made by a mode permissible under the Service Rules, that
appointment was made in relaxation of the rules by the
Government which is implicit in the action taken, the
initial ad hoc appointment must, therefore, be equated to
the regular appointment made under the Rules, and on this
equation there is no justification for discrimination
between the initial ad hoc appointees and regular appointees
coming in by direct recruitment thereafter in accordance
with the rules. It was further submitted that the case fell
squarely within the ambit of conclusion (B) of the summary
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In Maharashtra Engineers case.
Allowing the appeals, this Court,
HELD : 1. There is no dispute between promotes and direct
recruits, the claim of the writ petitioners being based only
as direct recruits in the Cadre of Assistant Engineers, and
not as promotees from the lower cadre of Sub-Assistant
Engineers to which they had earlier belonged. The present
is, therefore, not a case of a dispute relating to the
surplus promotees, who were given promotion regularly in
accordance with rules, but in excess of the quota fixed for
them under the rules. In the present case, all the writ
petitioners are persons who were given ad hoc temporary
appointments for a fixed period, which was extended from
time to time till their regularisation on 26-2-1980, and
that too by relaxation of the condition of selection by the
Public Service Commission, which was an express condition of
their ad hoc appointment and a requirement for regular
appointment under the Rules. Assuming the relaxation made
in their case by the State Government on 26-2-1980 to be
valid, they could be treated as regularly appointed only
with effect from 26-2-1980 when the
922
relaxation was given to them, and an order was made
simultaneously absorbing them in the cadre of Assistant
Engineers, also framing a rule at the same time under
Article 309 providing for fixation of their seniority only
from that date. Accordingly, there is no foundation for the
claim that they could be treated at par with the direct
recruits, regularly appointed prior to 26-2-1980. [934 C-E]
2. Prior to the steps taken by the State Government on 26-2-
1980 for regularisation, there was no basis on which the
writ petitioners could claim to be regularly appointed as
Assistant Engineers; and, therefore, the manner in which
they were regularised, including the mode of fixation of
their seniority with effect from 26-2-1980, is decisive of
the nature of their regular appointment. This alone is
sufficient to negative their further claim. They can make
no grievance to any part of that exercise, made only for
their benefit [934 F-G]
3. The claim of the writ petitioners (respondents in all
these appeals) for treating their entire period of service
prior to 26-2-1980 as regular service for the purpose of
seniority, and fixation of their seniority accordingly, is
untenable. 1937-A]
4. Rule It of the 1959 Rules provides for appointments to be
made during emergency, and lays down that such appointments
can be made only by advertisement and interview, through the
Public Service Commission. Admittedly, this express
requirement in Rule 11 was not followed or fulfilled
subsequently, and, therefore, the initial ad hoc
appointments cannot be treated to have been made according
to the applicable rules. These ad hoc appointments were
clearly not in accordance with the rules, and were made only
as a stop-gap arrangement for fixed period, as expressly
stated in the appointment order itself. [937-C]
5. Conclusions (A) and (B) of the Constitution Bench in the
Maharashtra Engineer’s case have to be read harmoniously,
and conclusion (B) cannot cover cases which are expressly
excluded by conclusion (A). It is. clear from
conclusion (A) that to enable seniority to be counted from
the date of initial appointment and not according to the
date of confirmation, the incumbent of the post has to be
initially, appointed ’according to the rules’. The
corollary set out in conclusion (A), then is, that ’Where
the initial appointment is only ad hoc and not according to
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rules and made as a stop- gap arrangement, the officiation
in such posts cannot be taken into
923
account for considering the seniority. The case of the writ
petitioners squarely falls within this corollary in
conclusion (A), which says that the officiation in such
posts cannot be taken into account for counting the
seniority. [935 D-F]
6. Conclusion (B) was added to cover a different kind of
situation, wherein the appointments are otherwise regular
except for the deficiency of certain procedural requirements
laid down by the rules. This is clear from the opening
words of the conclusion (B), namely, if the initial
appointment is not made by following the procedure laid down
by the rules and the later expression ’till the
regularisation of his service in accordance with the rules’.
Conclusion (B) must be so read as to reconcile with
conclusion (A). [936-B]
7. Decision about the nature of the appointment, for
determining whether it falls in this category, has to be
made on the basis of the terms of the initial appointment
itself and the provisions in the rules. In such cases, the
deficiency in the procedural requirements laid down by the
rules had to be cured at the first available opportunity,
without any default of the employee, and the appointee must
continue in the post uninterruptedly till the regularisation
of his service, in accordance with the rules. In such
cases, the appointee is not to blame for the deficiency in
the procedural requirements under the rules at the time of
his initial appointment. In such cases also, if there be
any delay in curing the defects on account of any fault of
the appointee, the appointee would not get the full benefit
of the earlier period on account of his default, the benefit
being confined only to the period for which he is not to
blame. This category of cases is different from those
covered by the corollary in conclusion (A) which relates to
appointment only on ad hoc basis as a stop-gap arrangement
and not according to rules. [936 E-G]
8. It is, therefore, not correct to say, that the present
cases can fall within the ambit of conclusion (B), even
though they are squarely covered by the corollary in
conclusion (A). [936-H]
9. There is, therefore, no escape from the conclusion that
the present cases fall squarely within the ambit of the
corollary in conclusion (A), of, Maharashtra Engineers’ case
and, therefore, the period of ad hoc service of writ
petitioners (respondents) on the post of Assistant Engineer
prior to 26-2-1980, cannot be counted for reckoning their
seniority. [937-E]
924
Direct Recruit Class II Engineering Officers ’Association
and Ors. v. State of Maharashtra and Ors., [1990] 2 SCR 900
= [1990] 2 SCC 715, explained and followed. [932-D]
A. Janardhana v. Union of India & Ors., [1983] 2 SCR 936 and
Narender Chadha & Ors. v. Union of India and Ors., [1986] 1
SCR 211, referred to. [932-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3607-11 of
1988.
From the Judgment and Order dated 12.7.1988 of the Calcutta
High Court in F.M.A.T. Nos. 2301, 2326 and 2327 of 1986.
Tapas Ray, Dr. Shankar Ghosh, B. Dutta, H.K. Puri, S.K.
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Nandy, Sushil Kr. Jain and R.K. Joshi for the Appellants.
G.L. Sanghi, N.R. Chowdhary, Som Nath Chatterjee for the
Respondents.
The Judgment of the Court was delivered by
VERMA, J. These appeals involve for decision a common
question, relating to fixation of seniority of certain Sub-
Assistant Engineers appointed ad hoc temporary Assistant
Engineers for a specified period in the P.W.D. and the
Irrigation and Waterways Department of the Government of
West Bengal, vis-a-vis the direct recruits in the cadre of
Assistant Engineers appointed regularly according to rules
in these departments prior to the regularisation of the ad
hoc appointees. The question was raised by the ad hoc
appointees who were regularised subsequently, by filing writ
petitions in the Calcutta High Court claiming revision of
their seniority, reckoned from the date of their initial ad
hoc appointment. These writ petitions were dismissed by a
Single Bench of the High Court but the writ appeals were
allowed by a division bench, resulting in grant of the
relief claimed by the ad hoc appointees. It is these
judgments, involving the common question of the merit of the
claim of the ad hoc appointees for seniority, reckoned from
the date of their initial ad hoc appointment, in he facts
and circumstances of the case, which are challenged in these
appeals.
925
Civil Appeal No. 3607 of 1988 is by the State of West Bengal
while Civil Appeal No. 3610 of 1988 is by the adversely
affected direct recruits who were respondents in the writ
petition filed by the ad hoc appointees in the P.W.D. Civil
Appeal No. 3608 of 1988 is by the State of West Bengal while
Civil Appeal No. 3611 of 1988 is by the adversely affected
direct recruits who were respondents in the writ petition
filed by the ad hoc appointees in the Irrigation and
Waterways Department. Civil Appeal No. 3609 of 1988 is a
similar matter, also relating to the Irrigation and Water-
ways Department.
The material facts are only a few, and may be stated with
reference to the P.W.D., pointing out the minor difference
on facts between the ad hoc appointments made in the PWD and
Irrigation and Waterways Department, which are not
significant on the conclusion reached.
In exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India, the Governor of
West Bengal made Rules by Notification No. 94 dated 20th
August, 1959 for the regulation of recruitment to the
Engineering Services under the Department of Works and
Buildings of the Government of West Bengal. In the present
case, we are concerned with the cadre of Assistant
Engineers, for which the relevant rules are :
"Rule 4:
There will be an examination held by the
Public Service Commission, West Bengal, for
recruitment to posts of Assistant Engineer. A
certain proportion of such posts as may be
determined by the Works and Buildings Depart-
ment from time to time, will be filled up by
candidates, in order of merit, who will be
given a higher initial pay of Rs. 325 per
month in the time-scale of pay for Assistant
Engineers. In order to be eligible for such
higher initial pay a candidate must secure 66
per cent or above of the total marks in the
said examination.
Rule 9:
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Recruitment to the permanent posts of
Assistant Engineer shall be made as follows
926
(a)Forty per cent of vacancies by direct
recruitment on the results of a competitive
examination to be conducted by the Public
Service Commission, West Bengal as mentioned
in rule 4 supra:
Qualifications :
(i)A degree in Civil Engineering of a
recognised University or any other
qualification in Civil Engineering exempting a
candidate from appearing in Sections A and B
of Associate Membership Examination of the
Institute of Engineers (India).
(ii)One year’s post graduate practical
training or study or research or practica
l
engineering experience.
(iii)Age not more than 27 years on the 1st
August of the year in which the recruitment
examination is held.
The age limit shall in the case of candidates
who have been in the employ of the Central or
the State Government or of the Damodar Valley
Corporation or any other statutory body
recognised for the purpose by the Government
and are not out of such employment for more
than a year on the said date be releasable to
the extent of the actual period spent
(continuously) in such employment. This
relaxation of age limit will not be permitted
to a candidate who had already appeared in the
examination thrice.
No candidate will be allowed to take more than
three chances.
Departmental candidates are’ eligible to apply
provided they fulfill the requisite
qualifications.
(b)Forty per cent by selection from amongst
directly recruited temporary Assistant
Engineers who have rendered two years
satisfactory service, selection wing made by
the Public Service Commission, West Bengal.
927
(c)Twenty per cent by promotion of confirmed
Overseer Estimators.
Rule 10
Recruitment to temporary posts of Assistant
Engineer shall be made as follows-.-
(a) Eighty per cent of the vacancies are to be
filled by direct recruitment on the results of
a competitive examination referred to in rule
9(a) above.
(b) Twenty percent by promotion of confirmed
Overseer Estimators.
Rule 11
Notwithstanding anything contained in these
rules the Governor may in case of emergency
fill up vacancies in the posts of Assistant
Engineer both permanent and temporary by
advertisement and interview, through the
Public Service Commission, West Bengal.
Rule 12
An Overseer Estimator shall not be promoted as
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a temporary Assistant Engineer unless he has
rendered 10 years services. To be eligible fo
r
promotion he must pass a written and oral
examination which will be conducted by the
Public Service Commission, West Bengal, and
will be of the same standard as Professional
Examination referred to in Chapter VI of the
Service (Training and Examination) Rules, West
Bengal, Overseer Estimators who have been
confirmed in their posts and have tendered 8
years’ service including temporary service in
that post shall be eligible to sit for such
examination, a panel of Overseer Estimator fit
for promotion as temporary Assistant Engineers
shall be maintained in consultation with the
Public Service Commission, West Bengal."
Under these Rules, recruitment to the permanent posts of
Assistant Engineers was required to be made under Rule 9,
while Rule 10 governed
928
recruitment to the temporary posts of Assistant Engineers.
Rule 11 provided for emergency appointment by advertisement
and interview through the Public Service Commission. It is
clear from these Rules that appointments to all the posts,
permanent and temporary were to be made according to the
prescribed procedure, on the basis of a competitive
examination conducted by the Public Service Commission; and
even the appointments made in an emergency governed by Rule
11 were to be made ’by advertisement and interview through
the Public Service Commission’. Any appointment to a
permanent or temporary post of Assistant Engineer, which was
not made in accordance with Rule 9 or 10 or 11 was,
therefore, not in accordance with these Rules.
The writ petitioners in all these matters were duly
appointed Sub-Assistant Engineers who were earlier called
Overseer Estimators as described in the Rules, and though
initially diploma holders, having obtained the prescribed
degree, were eligible for appointment as Assistant
Engineers. The writ petitioners (respondents in these
appeals) were appointed temporary Assistant Engineers on ad
hoc basis, initially for a period of six months in the PWD
between. 1974 to 1976 and in the Irrigation and Waterways
Department between 1972 to 1978. According to writ
petitioners themselves, their claim for seniority is based
on direct recruitment to the post of Assistant Engineer, and
not as promotee from the next below cadre of Sub-Assistant
Engineers in the promotion quota specified for them, in the
Rules. It is, therefore, the claim of the writ petitioners
for seniority from the date of their initial ad hoc
appointment, as direct recruits, and not as promotees in the
promotion quota, which has to be considered. The ad hoc
appointment of all the writ petitioners was in identical
terms and, therefore, it is sufficient to refer merely to
the relevant part of one such notification dated 10th May,
1974, as illustrative of the nature of their ad hoc
appointment. The relevant part of the notification is as
under
"The Governor is pleased to appoint the
following Sub-Assistant Engineers of the
P.W.D. now posted in the Directorates/offices
mentioned against each as tempy. Assistan
t
Engineers in the West Bengal Service of
Engineers under the P.W. Department, on ad hoc
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basis, for a period of 6 (six) months with
effect from the dates of joining or until
further orders whichever is earlier.
929
4. The appointment is purely on ad hoc basis
and he will have to revert to the post of
S.A.E. if he is not selected for regular
appointment as Assistant Engineer through the
P.S.C."
The initial ad hoc appointment was extended periodically, on
the same terms, during the entire period upto 26.2.1980.
During this period, several opportunities were given to
these persons to appear before the Public Service Commission
to satisfy the condition attached to their ad hoc
appointment, but none of the writ petitioners complied with
the requirement, declining throughout to appear before the
Public Service Commission. Strangely, the State Government
requested the Public Service Commission to permit
regularisation of the services of these ad hoc, appointees
as Assistant Engineers, without being selected for regular
appointment by the Public Service Commission, but the Public
Service Commission firmly turned down that request. The
PSC’s letters dated 4.5.1978, 10.10.1979 and 22.11.1979
contain such refusal.
The Government, even then, took the decision on 26th
February, 1980 to regularise these persons as Assistant
Engineers, and, consequently, took three simultaneous steps
on 26.2.1980: the requirement in the rules of consultation
with the P.S.C. was dispensed with, for them; they were
absorbed as temporary Assistant Engineers; and rule under
Article 309 was made, providing for their seniority as
temporary Assistant Engineers, with effect from the same
date i.e. 26.2.1980. This rule clearly provided, that all
persons appointed regularly in accordance with rules, prior
to 26.2.1980, as Assistant Engineers would rank above the ad
hoc appointees so absorbed with effect from 26.2.1980. This
decision of the Government has also been implemented.
Surprisingly, the grievance, even then, of the writ
petitioners is, that their seniority should be reckoned not
only from 26.2.1980, as has been done, but from the date of
their initial ad hoc appointment made temporarily in the
above manner, notwithstanding the conditions attached to
that appointment under the rules, and their failure to
fulfill the same.
It is sufficient to refer to certain portions of the PSC’s
reply dated 4th May, 1978 to the State Government’s proposal
for regularisation of ad
930
hoc appointments, reiterating the strong objection of PSC
that ’the appointments had been ab initio irregular, illegal
and unconstitutional.’ Relevant extract from the reply is as
under:-
"2. It appears that the cases of 27 of 36 ad
hoc appointments of Assistant Engineer (29 in
the Civil Branch and 7 in the Electrical
Branch) under the Public Works Department as
made between May, 1974 and June, 1975 were
earlier reported to the Commission in January,
1975. The Commission informed Government that
the appointments had been ab initio irregular,
illegal and unconstitutional and requested
Government to make regular recruitment to the
posts after advertisement (vide Secretary’s
D.O. No. 370-PSC dated the 8th March, 1975).
The Commission also brought the irregularity
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to the notice of the Chief Secretary whose
reply in this regard was as follows (vide
Chief Secretary’s letter No. 938/75-CS dated
the 22nd August, 1975 issued by Public Works
(Estt.) Department :
’...The ad hoc appointments in question were
made by the Public Works Department in the
exigencies of public service pending
recruitment of Assistant Engineers through the
Public Service Commission, West Bengal and on
the express condition that the concerned of-
ficers would have ’lo revert if they failed to
be selected by the Public Service Commission
for appointment as Assistant Engineers."
3.It appears that of the 29 ad hoc Assistant
Engineers (Civil) only 3 applied in response
to the Commission’s subsequent advertisement.
None of them however appeared at the
preliminary written test held by the Com-
mission in that connection. As regards the 7
posts of Assistant Engineers (Electrical) it
appears that all the 7 ad hoc appointees
applied in response to the Commission’s
advertisements issued in 1975 but that none of
them was able to obtain even the pass mark at
the interviews. In the above context it is
not clear how Government can
931
now sponsor a proposal for regularisation of
the appointment of these ad hoc appointees."
In this reply it was finally said that the illegality of
these ad hoc appointments could not be cured. It was after
the strong stand taken by the PSC, that the State Government
took the aforesaid action on 26.2.1980 to dispense with the
requirement of consultation with the PSC, and regularise
appointments of ad hoc appointees with effect from
26.2.1980. The Rules for seniority made by the notification
dated 26.2.1980 issued in exercise of the power conferred by
the proviso to Article 309 of the Constitution, are as under
"1. These rules may be called the Seniority
Rules for the Assistant Engineers recruited in
the Public Works Department otherwise than
through the Public Service Commission, West
Bengal during the period from May 1974 t
o
June,1976.
2. The Assistant Engineers under Public Works
Department who were recruited otherwise than
through the Public Service Commission, West
Bengal during the period from May 1974 to June
1976 and who were excluded from the purview of
the Public Service Commission, West Bengal
under this department notification No. 1299- F
dated 26.2.1982, shall be deemed to be junior
to any Assistant Engineer who was selected by
the Public Service Commission, West Bengal and
was appointed on a date prior to 26th
February, 1980. The inter-seniority in
respect of the Assistant Engineers who are
covered by the said notification shall be
determined on the basis of select list, if
any. In the absence of any such select list
the inter-se seniority should be determined on
the basis of their length of service as
Assistant Engineer in the Public Works
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Department."
(emphasis supplied)
These ad hoc appointees having obtained the benefit of
regularisation with effect from 26.2.1980 without being
selected by the PSC, and being given the benefit of
seniority from the date of their regularisation on
932
26.2.1980, have challenged the Government’s action and
claimed seniority with effect from the date of their initial
ad hoc appointment, of this nature. It may, here be
mentioned, that in case of the ad hoc appointees in the
Irrigation and Waterways Department, even a rule for
seniority being given to them from 26.2.1980 was not made,
as was done for the ad hoc appointees in the P.W.D., and yet
they have also been given the same benefit. They make the
same grievance, inspite of this.
On behalf of the appellants, State of West Bengal and the
direct recruits aggrieved by the judgment of the Division
Bench of the High Court, it has been urged that the claim of
the writ petitioners (respondents in these appeals) for
seniority being given to the, retrospectively from the date
of their initial ad hoc appointment, made contrary to the
rules, in spite of their regularisation being made expressly
from 26.2.1980, is wholly untenable and against the
decisions of this Court, particularly the constitution bench
decision in Direct Recruit Class II Engineering
Officer’s Association and Ors. v. State of Maharashtra and
Ors., [1990] 2 SCR 900 = [1990] 2 SCC 715. On this basis,
it was submitted that the Division Bench of the High Court
committed an error in reversing the judgment of the Single
Bench, by which the writ petitions had been dismissed.
In reply Shri G.L. Sanghi appearing for the writ petitioners
(respondents in all these appeals) submitted, that the
initial ad hoc appointment of the writ petitioners was made
by a mode permissible under the rules; that appointment was
made in relaxation of’ the rules by the Government which is
implicit in the action taken; the initial ad hoc appointment
must, therefore, be equated with a regular appointment made
under the rules; and on this equation there is no
justification for discrimination between the initial ad hoc
appointees and regular appointees coming in by direct
recruitment thereafter in accordance with rules. It was
submitted that the initial ad hoc appointment being,
therefore, in the nature of regular appointment, made during
an emergency, after selection by a Committee consisting of
five Chief Engineers, these persons are entitled to count
their entire service including the ad hoc period prior to
26.2.1980, for the purpose of their seniority. Shri Sanghi
relied on the decisions of this Court in A. Janardhana v.
Union of India and Ors.[1983] 2 SCR 936 and Narender Chadha
Ors. v. Union of India and Ors. [1986] 1 SCR 211 to
support his submission. Shri Sanghi further submitted, that
the case of the writ petitioners fell squarely within the
ambit of conclusion (B) of the summary
933
in Maharashtra Engineers case (in para 44 of the SCR = para
47 of SCC.
The question, therefore, is whether Shri Sanghi is right in
his submission that this case falls within the ambit of the
said conclusion (B) in Maharashtra Engineers case. The
submission of the other side is that this case falls, not
within conclusion (B) but the corollary mentioned in con-
clusion (A), of that decision. Conclusions (A) and (B),
which alone are material, are as under :-
"(A) Once an incumbent is appointed to a post
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according to rule, his seniority has to be
counted from the date of his appointment and
not according to the date of his confirmation.
The corollary of the above rule is that where
the initial appointment is only ad hoc and not
according to rules and made as a stop-gap
arrangement, the officiation in such post
cannot be taken into account for considering
the seniority.
(B)If the initial appointment is not made by
following the procedure laid down by the rules
but the appointee continues in the post
uninterruptedly till the regularisation of his
service in accordance with the rules, the
period of officiating service will be
counted."
It is not necessary to deal at length with the decisions of
this court in A. Janardhana and Narender Chadha in view of
the later constitution bench judgment in Maharashtra
Engineers’ case, wherein all the relevant earlier decisions
have been considered before summarising the conclusions (in
para 44 of SCR = para 47 of SCC).
We may, however, briefly refer to the decisions in A.
Janardhana and Narender Chadha, since Shri Sanghi has
strongly relied on them. It may be mentioned that both
these decisions related to inter-se seniority of direct
recruits and promotees, the two channels for appointment to
the posts, where there was a quota prescribed for the two
channels leading to rota for confirmation, and the seniority
was based on the date of confirmation, according to rules.
The dispute arose as a result of promotions being made in
excess of the promotees quota, in the case of the surplus
promotees. It
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was in that context, that the question of taking into
account longer period of continuous officiation for the
purpose of fixing inter-se seniority of direct recruits and
promotees, came up for consideration. Those cases are
clearly distinguishable. In the present case, there is no
dispute between promotees and direct recruits, the claim of
the writ petitioners being based only as direct recruits in
the cadre of Assistant Engineers, and not as promotees from
the lower cadre of Sub- Assistant Engineers to which they
had earlier belonged. The present is, therefore not a case
of a dispute relating to the surplus promotees, who were
given promotion regularly in accordance with rules, but in
excess of the quota fixed for them under the rules. In the
present case, all the writ petitioners are persons who were
given ad hoc temporary appointments for a fixed period,
which was extended from time to time till their
regularisation on 26.2.1980, and that too by relaxation of
the condition of selection by the Public Service Commission,
which was an express condition of their ad hoc appointment
and a requirement for regular appointment under the Rules.
Assuming the relaxation made in their case by the State
Government on 26.2.1980 to be valid, as the same is not
disputed before us, they could be treated as regularly
appointed only with effect from 26.2.1980 when the
relaxation was given to them, and an order was made
simultaneously absorbing them in the cadre of Assistant
Engineers, also framing a rule at the same time under
Article 309 providing for fixation of their seniority only
from that date. Accordingly, there is no foundation for the
claim that they could be treated at par with the direct
recruits, regularly appointed prior to 26.2.1980.
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The admitted facts, which are the foundation of the claim of
the writ petitioners, are sufficient to negative their
claim. It is obvious that prior to the steps taken by the
State Government on 26.2.1980 for their regularisation in
this manner, there was no basis on which the writ
petitioners could claim to be regularly appointed as
Assistant Engineers; and, therefore, the manner in which
they were regularised, including the mode of fixation of
their seniority with effect from 26.2.1980, is decisive of
the nature of their regular appointment. This alone is
sufficient to negative their further claim. They can make
no grievance to any part of that exercise, made only for
their benefit.
The constitution bench in Maharashtra Engineers’ case, while
dealing with Narender Chadha, emphasised the unusual fact
that the promotees in question had worked continuously for
long periods of nearly fifteen to
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twenty years on the posts without being reverted, and then
proceeded to state the principle thus :
"We, therefore, confirm the principle of
counting towards seniority the period-of
continuous officiation following an
appointment made in accordance with the rules
prescribed for regular substantive
appointments in the service.’
The constitution bench having dealt with Narendra Chadha in
this manner, to indicate the above principle, that decision
can not be construed to apply to cases where the initial
appointment was not according to rules.
We shall now deal with conclusions (A) and (B) of the
constitution bench in the Maharashtra Engineers’ case,
quoted above.
There can be no doubt that these two conclusions have to be
read harmoniously, and conclusion (B) can not cover cases
which are expressly excluded by conclusion (A). We may,
therefore, first refer to conclusion (A). It is clear from
conclusion (A) that to enable seniority to be counted from
the date of initial appointment and not according to the
date of confirmation, the incumbent of the post has to be
initially appointed ,according to rules’. The corollary set
out in conclusion (A), then is, that ’where the initial
appointment is only ad hoc and not according to rules and
made as a stop-gap arrangement, the officiation in such
posts cannot be taken into account for considering the
seniority. Thus, the corollary in conclusion (A) expressly
excludes the category of cases where the initial appointment
is only ad hoc and not according to rules, being made only
as a stop-gap arrangement. The case of the writ petitioners
squarely falls within this corollary in conclusion (A),
which says that the officiation in such posts cannot be
taken into account for counting the seniority.
This being the obvious inference from conclusion (A), the
question is whether the present case can also fall within
conclusion (B) which deals with cases in which period of
officiating service will be counted for seniority. We have
no doubt that conclusion (B) cannot include, within its
ambit, those cases which are expressly covered by the
corollary in conclusion (A), since the two conclusions
cannot be read in conflict with each other.
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The question therefore, is of the category which would be
covered by conclusion (B) excluding therefrom the cases
covered by the corollary in conclusion (A).
In our opinion the conclusion (B) was added to cover a
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different kind of situation, wherein the appointments are
otherwise regular, except for the deficiency of certain
procedural requirements laid down by the rules. This is
clear from the opening words of the conclusion (B), namely,
’if the initial appointment is not made by following the
procedure laid down by the rules’ and the later expression
’till the regularisation of his service in accordance with
the rules’. We read conclusion (B), and it must be so read
to re-councile with conclusion (A), to cover the cases where
the initial appointment is made against an existing vacancy,
not limited to a fixed period of time or purpose by the
appointment order itself, and is made subject to the
deficiency in the procedural requirements prescribed by the
rules for adjudging suitability of the appointee for the
post being cured at the time of regularisation, the
appointee being eligible and qualified in every manner for a
regular appointment on the date of initial appointment in
such cases. Decision about the nature of the appointment,
for determining whether it falls in this category, has to be
made on the basis of the terms of the initial appointment
itself and the provisions in the rules. In such cases, the
deficiency in the procedural requirements laid down by the
rules has to be cured at the first available opportunity,
without any default of the employee, and the appointee must
continue in the post uninterruptedly till the regularisation
of his service, in accordance with the rules. In such
cases, the appointee is not to blame for the deficiency in
the procedural requirements under the rules at the time of
his initial appointment, and the appointment not-being
limited to a fixed period of time is intended to be a
regular appointment, subject to the remaining procedural
requirements of the rules being fulfilled at the earliest.
In such cases also, if there be any delay in curing the
defects on account of any fault of the appointee, the
appointee would not get the full benefit of the earlier
period on account of his default, the benefit being confined
only to the period for which he is not to blame. This
category of cases is different from those covered by the
corollary in conclusion (A) which relates to appointment
only on ad hoc basis as a stop-gap arrangement and not
according to rules. It is, therefore, not correct to say,
that the present cases can fall within the ambit of
conclusion (B), even though they are squarely covered by the
corollary in conclusion (A).
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In view of the above, it is clear that the claim of the writ
petitioners (respondents in all these appeals) for treating
their entire period of ’service prior to 26.2.1980 as
regular service for the purpose of seniority, and fixation
of their seniority accordingly, is untenable. The
submission of Shri Sanghi that their initial ad hoc
appointment must be treated as having been made in
accordance with the rules since the selection by an
alternative mode, namely, by a committee of five Chief
Engineers was resorted to on account of the emergency,
cannot be accepted. Rule 11 of the 1959 Rules provides for
appointments to be made during emergency, and lays down that
such appointments during emergency can be made only ’by
advertisement and interview, through the Public Service
Commission, West Bengal.’ Admittedly, this express
requirement in Rule 11 was not followed or fulfilled
subsequently, and, therefore, the initial ad hoc
appointments cannot be treated to have been made according
to the applicable rules. These ad hoc appointments were
clearly not in accordance with the rules, and were made only
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as a stop-gap arrangement for fixed period, as expressly
stated in the appointment order itself.
Thus, there is no escape from the conclusion that the
present cases fall squarely within the ambit of the
corollary in conclusion (A), of Maharashtra Engineers case
and, therefore, the period of ad hoc service of writ
petitioners (respondents) on the post of Assistant Engineer
prior to 26.2.1980, cannot be counted for reckoning their
seniority.
Consequently, these appeals are allowed. The impugned
judgments of the Division Bench of the High Court, are set
aside, and those of the Single Bench dismissing the writ
petitions are restored. No costs.
N.V.K.
Appeals allowed.
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