Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APEAL NO. 3620 OF 2009
(Arising out of SLP (C ) No. 2848 of 2006)
State of Rajasthan and Ors. …Appellants
Versus
Jagdish Narain Chaturvedi ….Respondent
WITH
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T.P. (C ) No. 604/2006
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J U D G M E N T
Dr. ARIJIT PASAYAT, J
1. Leave granted.
2. In these cases the State of Rajasthan had questioned correctness of the
judgment rendered by different benches of the Rajasthan High Court allowing
the Writ Petitions filed by the respondent in each case. The basic issue was
whether ad hoc appointment or appointments on daily wage or work charge
basis are appointments made to the cadre/service in accordance with the
provisions contained in the recruitment rules contemplated by the Government
Orders dated 25.1.1992 dated 17.2.1998. It is the stand of the appellants that
they are not, while the respondents contend to the contrary. The cases at hand
relate to the appointments made under the Rajasthan Subordinate Offices
Ministerial Staff Rules, 1957 (in short the ‘Ministerial Staff Rules’), the
Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967 (in
short the ‘Irrigation Branch Rules’), the Work Charged Employees Services
Rules, 1964 (in short Work Charged Rules), the Rajasthan Agricultural
Subordinate Service Rules, 1978 (in short the ‘Subordinate Rules’), the
Rajasthan Forest Subordinate Service Rules, 1963 (in short the ‘Forest
8
Subordinate Rules’), Rajasthan Panchayat Samiti and Zila Parishad Service
Rules, 1959 (in short the ‘Panchayat Service Rules’) and the Rajasthan
Secretariat Ministerial Service Rules, 1970 (in short the ‘Ministerial Service
Rules’) .
3. Stand of the appellants essentially is that the stagnation benefits are
given from the date of regularization. It is submitted that this question has been
decided in State of Haryana v. Haryana Veterinary & AHTS Association and
Anr. (2000 (8) SCC 4). It is the stand of the State that the stagnation benefits
are given since chance of promotion is not there. There is no question of any
regularization if the proficiency test is not passed. Circulars relied upon by the
employees refer to regular service.
4. In the Notification dated 29.3.1995 paras 3, 4 and 5 are of relevance.
Para 3 refers to regular service while para 4 states about 10% of benefit to 10%
to all the eligible employees and para 5 is the most crucial as it relates to the
benefit being given after regular appointment. Initially, the period fixed was
15 years, later it was made to three different periods of 9 years, 18 years and
27 years. Subsequent Notification is dated 25.1.1992 which talks of
9
promotion. Obviously, the promotion has to be from the existing cadre in
service.
5. Stand of the appellants is that the appointments can be relatable to the
existing cadre/service and in case of ad hoc and work charge service there is
no reference to any cadre. The recruitment rules specifically refer to existing
cadre/service. This position is clarified by a Notification dated 3.4.1993. The
crucial paragraph is para 3 which speaks of action being taken in accordance
with the recruitment rules. By a Notification of 17.2.1998, all previous orders
were superseded.
6. Stand of the appellants in essence is that the High Court confused regular
appointment made to the cadre/service with appointment to the post. It is also
submitted that if there was no regularization there was no scope for any
promotion. With reference to Rule 25(4) it is submitted that the same relates to
prospective employment as is evident from the expression “occurrence of
vacancy”. Starting point therefore is when the employee is born in the
cadre/service. Ad hoc employees had no right to the post.
10
7. It is submitted that though reference was made to 1992 circular the same
was misread. Since it was a wrong decision there is no question of any
negative equality.
8. Learned counsel for the respondent in each case on the other hand
submitted that similar issues were decided earlier and the special leave
petitions had been dismissed. Further, in the case of LDCs also, the State did
not question the correctness of the decision.
9. A few provisions of the Rajasthan Absorption of Surplus Personnel
Rules, 1969 (in short the ‘Rules’) need to be noted.
10. Rule 3(a) refers to ad hoc appointment and reads as follows:
“Ad hoc appointment means temporary appointment
made without selection of the candidate by any of the methods
of recruitment provided under the relevant service rules, or any
orders of Government where no service rules exist and
otherwise than on the recommendation of the Commission if
the post is in its purview.”
11. It needs to be noted that there is no scope for raising an issue that
executive instructions can override the rules. The law is to the contrary. The
Notification dated 3.4.1993 speaks of “in accordance with recruitment rules”.
11
Clarification was necessary because of doubts regarding regular appointment.
It is made clear that the period rendered in the existing cadre before regular
employment in accordance with the relevant recruitment rules to the post is
because of change of cadre the previous period is not counted so there is no
question of giving the benefit to ad hoc employees and the appointment letters
which were illustratively filed indicate that the appointments were till regular
appointment was made. Ad hoc appointment is not made in terms of the
requirements of the rules. The benefit is extended to avoid stagnation. In case
of ad hoc employees, stagnation is till the regularization is made. The stress in
the present case is on regular appointment to cadre/service. As rightly
contended by learned counsel for the State, the High Court confused itself with
appointment to post. The question of promotion arises only when appointment
is a regular appointment. Appointment to the post is not relevant; on the other
hand, what is relevant is the period relatable to the cadre of the service.
12. Rule 25(4) relates to prospective appointment as is clear from the
expression ‘occurrence’. Therefore, the starting point has to be as noted above,
when the employee is born in the cadre, as observed by this Court in Dr.
Chanchal Goyal (Mrs.) v. State of Rajasthan (2003 (3) SCC 485), Santosh
Kumar and Ors. v. G. R. Chawla and others (2003 (10) SCC 513) and A.G.
12
Sainath Reddy v. Govt. of A.P. & Ors. (2003 (4) SCC 625). Ad hoc employee
has no right to the post and ad hoc appointment does not count for the
purpose of seniority.
13. The High Court has referred to the cases of the LDCs. It is clear on
reading of the decision of the High Court that though the same was decided on
the factual background of 1992 circular it mis-construed the same. Wrong
decision does not create a right. There is no question of negative equality. (See
Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors.
(1997 (6) SCC 766), Gursharan Singh and Ors. v. New Delhi Municipal
Committee and Ors. (1996 (2) SCC 459) and Chandigarh Administration and
Anr. V. Jagjit Singh and Anr. (1995 (1) SCC 745). Methods of recruitment are
in Rule 5. The standard procedure is contained in Rules 16 and 17. Rule 22
refers to the recommendation and Rule 23 relates to the appointment to the
service. Rule 23 speaks of deemed regularization and after 7.11.1975 procedure
has to be followed. Sub-Rule (9) is of considerable importance. It speaks of
appointment on regular basis on availability of vacancy, the requirement to
pass a performance test and the number of chances given for such post. Rule
27 speaks of appointment to the service. Rule 28 speaks of urgent temporary
appointment when no post be filled up by direct recruitment or by promotion
13
immediately. There is no conceptual difference between the two. The High
Court has equated them. The Haryana Veterinary case (supra) has been
distinguished by the High Court saying that the appointment in this case was
not de hors by relying of Rule 28. The decision is fundamentally wrong
because the conceptual difference between Rule 23 and Rule 28 has been lost
sight of. In paras 7, 9, 10, 11 and 12 of the Haryana case it has been observed
as follows:
“7. Coming to the circular dated 2-6-1989, issued by the
Financial Commissioner and Secretary to the Government of
Haryana, Finance Department, it appears that the aforesaid
circular had been issued for removal of anomalies in the pay
scale of Doctors, Deputy Superintendents and Engineers, and
so far as Engineers are concerned, which are in Class I and
Class II, it was unequivocally indicated that the revised pay
scale of Rs 3000 to Rs 4500 can be given after completion of
5 years of regular service and Rs 4100 to Rs 5300 after
completion of 12 years of regular service. The said Financial
Commissioner had issued yet another circular dated 16-5-1990,
in view of certain demands made by officers of different
departments. The aforesaid circular was issued after
reconsideration by the Government modifying to some extent
the earlier circular of 2-6-1989, and even in this circular it was
categorically indicated that so far as Engineers are concerned,
they would get Rs 3000 to 4500 after 5 years of regular and
satisfactory service and selection grade in the scale of pay of
Rs 4100 to Rs 5300, which is limited to the extent of 20% of
the cadre post should be given after 12 years of regular and
satisfactory service. The aforesaid two circulars are
unambiguous and unequivocally indicate that a government
servant would be entitled to the higher scale indicated therein
only on completion of 5 years or 12 years of regular service
14
and further the number of persons to be entitled to get the
selection grade is limited to 20% of the cadre post. This being
the position, we fail to understand how services rendered by
Rakesh Kumar from 1980 to 1982, which was purely on ad hoc
basis, and was not in accordance with the statutory rules can be
taken into account for computation of the period of 12 years
indicated in the circular. The majority judgment of the High
Court committed serious error by equating expression “regular
service” with “continuous service”. In our considered opinion
under the terms and conditions of the circulars dated 2-6-1989
and 16-5-1990, the respondent Rakesh Kumar would be
entitled for being considered to have the selection grade on
completion of 12 years from 29-1-1982 on which date he was
duly appointed against a temporary post of Assistant Engineer
on being selected by the Public Service Commission and not
from any earlier point of time. The conclusion of the majority
judgment in favour of Rakesh Kumar, therefore, cannot be
sustained.
xxx xxx xxx
9. Under the Recruitment Rules which had been made in
exercise of powers conferred by the proviso to Article 309 of
the Constitution “member of service” means an officer
appointed substantively to a cadre post and includes in case of
a direct appointment an officer on probation or an officer who
having successfully completed his probation awaits
appointment to a cadre post. In case of an appointment by
transfer an officer who is on probation or who having
successfully completed the probation awaits appointment to a
cadre post.
10. Under Rule 6 of the Recruitment Rules, recruitment to the
service in the cadre post could be made both by way of direct
appointment as well as by promotion in the proportion from
different sources mentioned in the said Rule. Sub-rule (3) of
Rule 6 authorises appointment to a cadre post as stopgap
15
arrangement from sources other than the allotted source when a
candidate from the allotted source is not available from sources
1 and 3, but such appointee is liable to be reverted to his
original cadre when a candidate from the allotted source is
available and the period of service rendered by such person
shall not be reckoned for the purpose of his seniority.
11. Sub-rule (4) of the Rule thus enables the State Government
to fill up a short-term vacancy in the exigencies of public
service after recording reasons for a period not exceeding six
months in each case, without resorting to the select list
prepared under Rule 9.
12. Under Rule 8 appointment to the service has to be made by
way of direct recruitment strictly in the order of merit indicated
by the Public Service Commission depending upon the number
of vacancies available in the cadre.”
14. In that case also, sub-Rule 3 of Rule 6 and sub-rule (4) of Rule 6 are of
relevance. The High Court was clearly wrong in saying that the appointment
was made de hors the Rules. In Ram Ganesh Tripathi and Ors. V. State of U.P.
and Ors. (1997 (1) SCC 621 at para 7) it was stated as follows:
“7. Rule 21-A provides for regularisation of service of ad
hoc employees by treating them as persons appointed in
the service on the date of their regularisation. Rule 9
provides that a person appointed under that rule shall be
entitled to seniority only from the date of appointment
after selection in accordance with the said Rules and
shall, in all cases, be placed below the employees
appointed in accordance with the procedure for direct
recruitment prior to the appointment of such persons
under those Rules. In view of these statutory Rules, the
16
Government could not have treated the respondents and
other ad hoc employees whose services were regularised
on 17-5-1985 as persons regularly appointed from an
earlier date. Nor could the Government have counted
seniority from an earlier date either for promotion to the
higher post or for the purpose of giving selection grade.”
15. There is another hurdle on the way of the writ petitioners. When the
order of regularization was passed, according to learned counsel for the writ
petitioners-respondents the initial appointment was a substantive appointment.
If that was the position, there was need to take the proficiency test which
undisputedly all the respondents have taken. If initially the appointment was a
substantive appointment, the respondents-writ petitioners could have
challenged when the order of regularization was passed. There was no
challenge to the order of regularization and benefits therefrom and there was no
challenge to the order of regularization in any of the cases. If the plea of the
respondents-writ petitioners is accepted it would mean that in their cases the
regularization was done long back. There was no challenge at the relevant point
of time. Therefore, the belated approach only for the sake of getting advantage
of ad hoc or work charge service cannot be countenanced. The present stand
that the initial appointment was substantive appointment is contrary to the
factual position because in each case the proficiency test was undertaken and
17
the appointment letter shows that the appointment was till selected candidates
join.
16. Additionally, even if the proficiency test is passed the question of
eligibility is of relevance, “when the vacancy occurs”. So far as daily wage
services are concerned there is no scale of pay and the lowest figure scale of
pay has to be given. According to fundamental Rule 9(4), ‘cadre’ means the
strength of a service or part of service sanctioned as a separate unit. (See
Chakradhar Paswan v. State of Bihar (1988 (2) SCC 214).
17. In order to become “a member of service” candidate must satisfy four
conditions, namely (i) the appointment must be in a substantive capacity; (ii)
to a post in the service i.e. in a substantive vacancy; (iii) made according to
rules; (iv) within the quota prescribed for the source.
18. Ad hoc appointment is always to a post but not to the cadre/service and
is also not made in accordance with the provisions contained in the recruitment
rules for regular appointment.
18
19. Although the adjective ‘regular’ was not used before the words
‘appointment in the existing cadre/service’ in para 3 of the G.O. dated
25.1.1992 which provided for selection pay scale the appointment mentioned
there is obviously a need for regular appointment made in accordance with the
Recruitment Rules. What was implicit in the said paragraph of the G.O when it
refers to appointment to a cadre/service has been made explicit by the
clarification dated 3.4.1993 given in respect of point No.2. The same has been
incorporated in para 3 of the G.O. dated 17.2.1998.
20. Rules 23, 27 and 28 of Ministerial Service Rules read as under:
“
23. Appointment to the Service.-, (1) Subject to the
provisions of rules 6, 6A, 6B and 6C, except in respect of the
posts of Stenographers the Appointing Authority shall appoint
candidates who stand highest in the order of merit in the list
prepared under rule 22, provided that he is satisfied after such
enquiry as may be considered necessary that such candidates
are suitable in all other respects for such appointment:
Provided that subject to the provisions of rule 6, the
Appointing Authority shall appoint candidates to the post of
Stenographers from the list prepared under sub-rule (2-A) of
rule 22 provided that he is satisfied after such enquiry as may
be considered necessary that such candidates are suitable in all
other respects for such appointment.
(2) Notwithstanding anything contained in rule 7 the persons
appointed temporarily as Lower Division Clerk up to 7.11.75.
who have been continuously holding such posts or higher posts
19
shall be deemed to have been appointed regularly on temporary
basis provided they fulfil other conditions prescribed in the
Rules. They shall be eligible to be appointed substantively as
Lower Division Clerks according to the date of their temporary
appointment and on occurrence of permanent vacancies and
their work being found satisfactory:
Provided that a person working temporarily as Lower
Division Clerk whose work is not found satisfactory shall be
liable to be removed from service.
(i) by giving him one month's notice if he has served
temporarily in connection with the affairs on the State for less
than three years; and
(ii) by following the procedure as laid down in the Rajasthan
Civil Services (Classification, Control and Appeal) Rules,
1958, if he has served for more than three years. All person
appointed temporarily as Lower Division Clerks after 31-3-
1978 shall be required to seek regular recruitment through the
Competitive examination as prescribed in the Rules.
(3) Notwithstanding anything contained in rule 7, the persons
who were appointed temporarily, in connection with the
general strike in accordance with the orders/instructions issued
by the State Government and were holding the posts of Lower
Division Clerks on 27.11.1975 and, who have not passed the
prescribed test conducted by the Appointing Authority under
the rules applicable to them at the time of their appointment
shall be given one more chance to pass the prescribed test in
accordance with the rules applicable to them before coming
into force of the rules amended Vide Notification
No.F.2(45)DOP/ B-1/72, dated 7.11.1975 published in the
Rajasthan Rajpatra, dated 27.11.1975, for being appointed
substantively as Lower Division Clerks according to the date of
their temporary appointment on occurrence of permanent
vacancies provided that the service of persons who, fail to pass
the said test to be held by the Appointing Authority shall be
liable to be terminated by giving one month's notice or pay and
20
allowances in lieu thereof, if they have served temporarily in
connection with the affairs of the State for less than three years;
and three months notice of pay and allowances in lieu thereof if
they have served temporarily in connection with the affair of
the
State for more than three years."
(4)Notwithstanding anything contained in rule 5, all persons
working as Lower Division Clerk during the period from
8.11.1975 to 31.3.1978 on ad-hoc basis and who could not
appear in or pass the competitive/qualifying examination held
by the Commission as yet, shall on availability of permanent
vacancies, be made permanent subject to the condition that they
pass a Performance. Test conducted by the Appointing
Authority in accordance with the syllabus prescribed in Part-V
of Schedule-II. Such persons shall be allowed three chances to
pass the said test.
(5) Notwithstanding anything contained in Rule 5, all persons
working as Lower Division Clerk during the period from
1.4.1978 to 31.3.1980 on ad hoc basis and who could not
appear in or pass the competitive/qualifying examination held
by the commission as yet, shall on availability of permanent
vacancies, be made permanent subject to the condition that they
pass a performance test conducted by the Head of Department
concerned in accordance with the syllabus prescribed in Part IV
of Schedule-II. Such persons shall be allowed three chances to
pass the said test:
Provided that if a person fails to pass the said test in
three chances he shall be liable to be removed from the services
:
21
(i) by giving him one month's notice, if he served
temporarily in connection with the affairs of the State for less
than three years, and
(ii) by allowing procedure as laid down in Rajasthan Civil
Services (Classification, Control and Appeal) Rules, 1958, if he
has served for more than three years.
(6) Notwithstanding anything contained in Rule 5, all persons
working as Lower Division Clerks during the period from,
1.4.1980 to 31.12.1984 on urgent temporary basis and who
have not passed the competitive examination held by the
commission as yet shall on availability of permanent vacancies
be made permanent subject to the condition that they pass
qualifying examination conducted by the Commission in
accordance with syllabus prescribed in Part-IV of Schedule-II.
Provided that the Commission shall not recommend any
candidate who has failed to obtain a minimum of 35% marks in
each of the compulsory and optional papers in the Lower
Division Clerks’ Examination;
Provided further that if a person fails to pass the said
examination his services shall be terminated on the expiry of 30
days from the date of receiving list of successful candidates by
the Deputy Secretariat to the Government, Department of
Personnel and Administrative Reforms (B-I) Department.
(7) Notwithstanding anything contained in rule 5, all persons
working as Lower Division Clerks during the period from
1.4.80 to 31.12.84 on urgent temporary basis and who have not
passed or appeared in the qualifying examination conducted by
the Commission under sub-rule (6) of rule 23 on availability of
permanent vacancy be made permanent subject to the condition
that they pass a performance test conducted by the Appointing
Authority within a period of three years in accordance with the
provisions of the rules. Such persons shall be allowed three
22
chances to pass the said test to be availed within a period of
three years;
Provided that if a person fails to pass the said test in three
chances to be availed within a period of three years he shall be
liable to be removed from services.
(8) Notwithstanding anything contained in rule 5 handicapped
persons appointed on the post of L.D.C. during the period from
1.4.80 to 31.3.88 shall on availability of permanent vacancy be
made permanent by the Appointing Authority on their work
being satisfactory.
(9) Notwithstanding anything contained in rule 5, all persons
appointed as L.D.Cs. on ad-hoc basic or on daily wage basis
during the period from 1.1.85 to 31.3.90 and are still working
as such on the date this amendment comes into force shall be
appointed on regular basis on availability of vacancy subject to
the condition that they pass a performance test conducted by
the Appointing Authority within a period of three years in
accordance with the provisions of the rules. Such persons shall
be allowed three candidates to pass the said test to be availed
within a period of three years;
Provided that if a person fails to pass the said test in three
chances to be availed within a period of three years, he shall be
liable to be removed from services.
27. Appointment to the Service :- Appointment by promotion
to the posts in the services, specified in the Schedule appended
with these Rules, shall be made by the Appointing Authority on
the occurrence of the vacancies as determined under rule 8
from amongst the persons selected under Rules 25 and 26, as
the case may be.
28. Urgent temporary appointment :- A vacancy in the
service which cannot be filled in immediately either by direct
recruitment or by promotion under the rules may be filled in on
23
urgent temporary basis “by the Government or by the authority
competent to make appointments" as the case may be, by
appointing in an officiating capacity thereto an officer eligible
for appointment to the post by promotion or by appointing
temporarily thereto a persons eligible for direct recruitment to
the services, where such direct recruitment has been provided
under the provisions of these Rules:
Provided that such an appointment will not be continued
beyond a period of one year without referring the case to the
Commission for concurrence where such concurrence is
necessary, and shall be terminated immediately on its refusal to
concur.
Provided further that in respect of the service or a post in
the service for which both the above methods of recruitment
have been prescribed, the Government or the authority
competent to make appointment, as the case may be shall not,
save with the specific permission of the Government in the
Department of Personnel in the case of State Services and
Government in the Administrative Department concerned in
respect of other services, till the y temporary vacancy against the
direct recruitment quota by a whole-time appointment for a
period exceeding three months otherwise than out of persons
eligible for direct recruitment and after a short-term
advertisement.
(2) In the event of non-availability of suitable persons
fulfilling the requirements of eligibility for promotion,
Government may not withstanding the condition of eligibility
for promotion required under sub-rule (1) above, lay down
general instructions for grant of permission to fill the vacancies
on urgent temporary basis subject to such conditions and
restrictions regarding pay and other allowance as it may direct.
Such appointments shall however be subject to concurrence of
the Commission as required under the said sub rule."
24
21. The High Court failed to appreciate that the Recruitment Rules made a
distinction between appointments made to the cadre/service in accordance with
the relevant Recruitment Rules which are regular and appointments made de
hors the regular Recruitment Rules which are ad hoc.
22. So far as the dismissal of some special leave petitions summarily it is
made clear that, it does not affect the jurisdiction of the Supreme Court to grant
special leave to appeal and allow the same. It is well settled that a decision
which is per incuriam is not ‘law’ declared in terms of Article 141 to have a
binding effect. (See Prabhakar Rao v. State of A.P. (1985 Supp 2 SCR537),
State of Maharashtra v. Digambar (1995 (4) SCC683), Union of India v. K.N.
Sivadas (1997 (7) SCC 30), State of U.P. v. Synthetics and Chemicals Ltd.
(1991 (4) SCC 139) and Punjab Land Development and Reclamation
Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682).
23. Apart from Haryana Veterinary case (supra) the position in law as stated
in State of Punjab v. Ishar Singh (2002 (10) SCC 674) and State of Punjab v.
Gurdeep Kumar ( 2003 (11) SCC 732) clearly lay down that while reckoning
the required length of service the period of ad hoc service has to be excluded. It
is relevant to note that the first selection scale of pay was excluded several
25
years back on completion of 9 years of service subsequent to regularization.
After long lapse of time i.e. after nearly 8 years it was not open to be canvassed
that the second selection scale of pay ought to be granted after the concerned
employees having put in 18 years of service from the date of ad hoc
appointment.
24. Above being the position the appeals and transfer petitions deserve to be
allowed which we direct.
Civil Appeal /09 @ SLP (C) 25651 of 2005
25. It is a case of the respondent in the present case that though his case was
heard alongwith other cases which are disposed of today, in the instant case the
test was in the year 1981. The regularization was in 1982 and first selection
grade was given in 1991 and the second was given in 2000. That being so, the
respondent is entitled to the benefit which the Government has not granted. The
State is directed to consider this question immediately.
26. Appeal is disposed of.
26
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
(ASOK KUMAR GANGULY)
New Delhi,
May 08, 2009
27