& Anr Vs. State of Madhya
Pradesh & Ors
 INSC 111 (23
P.B. Sawant, P.B. Kuldip Singh (J)
1990 AIR 1311 1990 SCR (2) 131 1990 SCC (2) 553 JT 1990 (2) 9 1990 SCALE (1)540
INFO : R 1992 SC1188 (7)
Pradesh P.W.D. (Gazetted) recruitment Rules, 1969: Rule 19(1)--Assistant
Engineers--Appointment on ad hoc basis for purely administrative exigencies
right to claim seniority from date of initial appointment--Whether promis- sible.
two appellants had joined as overseers in the P.W.D. of the respondent Madhya Pradesh State. Thereafter they were appointed as
Junior Engineers. The grievance of the appel- lants is with regard to their
seniority in the next promo- tional post viz, that of Assistant Engineer.
Rules which govern the promotional post lay down that the Departmental
promotion Committee is required to consider the names of all eligible
candidates on merits and judge their suitability in all respects on merit-cum-
seniority basis. The D.P.C. is also required to arrange the names of all the
selected candidates in the order of their merit. In the case of exceptionally
meritorious junior he is given a higher number in the selection list. This list
is sent to Public Service Commission for its approval. After approval the list
becomes the select list and the promotions are made from this list serial wise.
Under the Rules to be eligible to be considered for promotion to the post of
Assistant Engineer a Junior Engineer has to have an experi- ence of two years
as Junior Engineer.
State Govt. wanted a certain number of Assistant Engineers but enough number
with requisite qualifying serv- ice were not available so taking resort to the
Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the
Rules the Govt. promoted some Junior Engineers including both the appellants is
Assistant Engineers on July 22, 1971 on purely ad hoc basis. On August 7, 1972 respond- ents 40 to 63 were
appointed as Assistant Engineers by direct recruitment and on November 22, 1972 respondents 2 to 39 and the
appellants were selected as Assistant Engineers by the D.P.C. On the same date
the State Govt. issued an order of appointment of the appellants and
respondents 2 to 39 in which appellant No. 1 was shown at 132 serial No. 14 and
appellant No. 2 at serial No. 28. The State Govt. thereafter prepared a
seniority list of Assist- ant Engineers as per the order of November 22, 1972. The appellants challenged the
seniority list before the High Court by a Writ Petition. The High Court
dismissed the Writ Petition.
the present appeal. Dismissing the appeal, this Court,
Under the Rules to be eligible to be considered for promotion to the post of
Assistant Engineer, a Junior Engineer has to have an experience of two years as
Junior Engineer. [133G] In the instant case, unless the D.P.C. makes the selec-
tion, none can be appointed as Assistant Engineer regularly.
appellants were ineligible to be appointed as Assistant Engineers initially.
Their appointments were made specifi- cally under the power given to the
Government to make ad hoc appointments for administrative exigency. The
appointment orders made it clear that the appointments were in the said Special
Circumstances and that they will not be deemed to determine seniority for any
purpose whatsoever. [138C-D] Once it is held that the appellants were appointed
on ad hoc basis, what comes into play is the proviso to Rule 19(1) which
permitted the Government to make such ad hoc appoint- ments for purely
administrative exigencies. [139D] Baleshwar Dass & Ors. v. State of U.P.
& Ors etc.,  1 S.C.R. 449 and G.P. Doval & Ors. v. Chief Secre- tary,
Government of U.P. & Ors.,  4 S.C.C. 329, re- ferred to.
APPELLATE JURISDICTION: Civil Appeal No. 931 of 1986.
the Judgment and Order dated 3.10.1985 of the Madhya Pradesh High Court in
Civil Misc. W.P. No. 15 10 of 1981.
M.K. Garg, Aman Lekhi and Lokesh Kumar for the appellants.
Sakesh Kumar, Uma Nath Singh, Satish K. Agnihotri and Ashok Singh for the
Judgment of the Court was delivered by 133 SAWANT, J. The two appellants in
this case had joined the service in the Public Works Department of the respond-
ent-Madhya Pradesh State, as Overseers. They were thereafter appointed as
Junior Engineers by direct recruitment--the first appellant on August 29, 1969 and the second appellant on September 12, 1969. Although the High Court in its im-
pugned judgment has stated that they were promoted as Junior Engineers from the
posts of Overseers, it appears that that statement is not correct since their
orders of appointment to the post of Junior Engineer which are Annexures P-1
and P-2 to the writ petition filed in the High Court show that their
appointments as Junior Engineers were not by way of promotion. This, however,
makes no difference to the issues involved in the present appeal. We have
stated it to keep the record straight. The grievance of the appellants is with
regard to their seniority in the next promotional post, viz., that of Assistant
Recruitment Rules which govern the said promo- tional post are known as Madhya
Pradesh P.W.D. (Gazetted) Recruitment Rules, 1969 (hereinafter referred to as
the 'Rules'). According to these Rules, Junior Engineers, Over- seers, Head
Draftsmen and Draftsmen are eligible to be considered for promotion to the post
of Assistant Engineer on their securing the requisite experience. Each of these
categories further has a fixed quota of its own. The Depart- mental Promotion
Committee, D.P.C. to be short, whose con- stitution is also prescribed in these
Rules, is required to consider the names of all the eligible candidates on
merits, and judge their suitability in all respects on merit-cum- seniority
basis. The D.P.C. is also required to arrange the names of all the selected
candidates ordinarily in the order of their seniority unless a junior is
exceptionally merito- rious in which case, of course, he is given a higher
number in the selection list. This list is then sent through the State
Government to the Public Service Commission for its consideration and approval.
The list as approved by the Commission then becomes the select list, and
promotions are made from this list in the same order as is arranged in the
in case of an administrative exigency, the State Government is given power to
appoint anyone not in- cluded in the said list if the vacancy is not likely to
last for more than three months. Under the Rules, to be eligible to be
considered for promotion to the post of Assistant Engineer, a Junior Engineer
has to have an experience of two years as Junior Engineer.
appears that the State Government wanted a certain 134 number of Assistant
Engineers, but enough number of Junior Engineers with requisite qualifying
service were not avail- able at the relevant time. Admittedly the appellants
were two of such unqualified Junior Engineers since they had not completed
their two years' qualified service as Junior Engineers at the relevant time.
Hence, taking resort to the Rule of Administrative Exigency contained in the
proviso to Rule 19(1) of the said Rules, the Government promoted some Junior
Engineers including both the appellants as Assistant Engineers on July 22, 1971 on purely ad hoc basis. In the
order appointing then, it was stated as follows: "Since adequate number of
Junior Engineers with requisite qualify- ing service are not available for
appointment as Assistant Engineers, and but for these promotions large number
of Assistant Engineers' posts would remain vacant adversely affecting the
construction work .......................
appointments will not be deemed to determine seniority as Assistant Engineer
for any purpose whatsoever."
is not disputed that on July
22, 1971 when the
appellants were so appointed as Assistant Engineers on ad hoc basis, appellant
no. 1 was short of'two years' qualify- ing service period by one month and
appellant No. 2, by two months. They became qualified on August 22, 1971 and on September 11, 1971 respectively.
appears that while the appellants continued to act as Assistant Engineers on ad
hoc basis, on August 7,
40 to 63 were appointed as Assistant Engineers by direct recruitment. Thereafter,
on November 22, 1972 respondents 2 to 39 and the
appellants were selected as Assistant Engineers by the D.P.C. On the same date,
the State Government issued an order of appointment of the appellants and
respondents 2 to 39 in which appellant no. 1 was shown at Serial No. 14 and
appellant no. 2 at Serial No.
The State Government thereafter prepared a seniority list of Assistant
Engineers which reflected the seniority of appellants as having been appointed
on and from November
22, 1972 and as per
the ranking given in the said order of November 22, 1972. The appellants challenged the
seniority list before the High Court by a writ petition. Although it appears
the appellants had also joined to the petition, those Junior Engineers who were
promoted as Assistant Engi- neers along with the appellants by the same order
and whose seniority in the list had reflected their placement in the order of
appointment, the challenge to the seniority of those Junior Engineers was given
up at the time of the arguments before the High Court, and it was confined to
the seniority of respondents 2 to 39 who were Overseers and were selected by
from their own quota as Assistant Engineers along with the appellants, and to
the seniority of respondents 40 to 63 who were appointed by direct recruitment
on August 7, 1972.
first challenge common to the seniority of all the respondents 2 to 63 was
based on the contention that the appellants' ad hoc service as Assistant
Engineers from July 22, 1971, when they were promoted on ad hoc basis, to Novem-
ber, 22, 1972, on which date they were selected as regular appointees, was not
taken into account. The second challenge was confined to the seniority given to
respondents 2 to 39 by giving them a weightage of their experience as
High Court negatived both the challenges and dismissed the writ petition. Hence
the present appeal.
same contentions which were advanced before the High Court was advanced before
us. We will, therefore, first examine the grievance that the ad hoc service of
the appel- lants was not counted for the purpose of the appellants' seniority.
A heavy reliance is placed on behalf of the appellants on the decision of this
Court reported in Balesh- war Dass & Ors. etc. v. State of U.P. & Ors.
etc.,  1 S.C.R. 449 in support of the contention that ad hoc officia- tion
is entitled to be counted for the purpose of seniority.
ratio of the said decision however is not applicable to the present case. In
that case there was no dispute that the temporary appointees to the posts, who
were claiming benefit of their temporary appointment or officiation were
qualified to be appointed to the posts when they were initially ap- pointed.,
All the procedural formalities of their appoint- ments were also followed,
namely, they had completed their probationary period, the Public Service
Commission had given its approval and they had also been medically examined and
found it. No rule was breached in making their appointment.
vacancies to which they were appointed were also sub- stantive vacancies. Their
appointments, however, had contin- ued for a number of years although there was
no obstacle whatsoever in making them regular or permanent. All that had
remained to be done was the issuance of a format order of regularisation of the
appointment which for unexplained reasons, the Govt. had failed to do for a
number of years.
Court therefore observed that "a post of short duration, say of a few
months, is different from another which is terminologically temporary but is
kept on for 10 or more years under the head "temporary" for budgetary
or other technical reasons. Those who are appointed and hold tempo- rary posts
of the latter category are also members of the service provided they have been
appointed substantively to that temporary post". A 136 little later, the
Court made further observations in this connection, as follows:
will ascertain from this angle whether the capacity in which posts have been
held was substantive or temporary. If it is not, the further point to notice is
as to whether the appointments are regular and not in viola- tion of any rule,
whether the Public Service Commission's approval has been obtained and whether
probation, medical fitness etc., are complete. Once these formalities are
complete, the incumbents can be taken as holding posts in substantive
capacities and the entire officiating service can be considered for seniority.
For other purposes they may remain temporary ...............
normal rule consistent with equity is that officiating service, even before
confirmation in service has relevancy to seniority if eventually no infirmities
in the way of confirmation exist. We see nothing in the scheme of the Rules
contrary to that principle. Therefore, the point from which service has to be
counted is the commencement of the officiating service of the Assistant
Engineers who might not have secured permanent appointments in the beginning
and in that sense may still be temporary, but who, for all other purposes, have
been regularised and are fit to be absorbed into permanent posts as and when
they are vacant. ' ' (Emphasis supplied) It will thus be seen that in that case
the appointments to the substantive vacancies were made according to rules
after complying with the procedure for regular appointment. There was no
requirement of the Recruitment Rules which was left to be complied with. In our
case unless the D.P.C. makes the selection, none can be appointed as Assistant
were the facts in the case of G.P. Doral & Ors. v. Chief Secretary,
Government of U. P. & Ors.,  4 S.C.C. 329 in that case the
petitioners were temporarily appointed as Khandsari Inspectors having been
selected in the departmental competitive test and interview. Their appointments
were however "subject to final selection by Public Service Commission at a
later date". Some of the respondents 137 were also appointed to the same
posts subsequently in the same manner. The names of these recruits were later forward-
ed to the Public Service Commission which accorded its approval to their
appointments. The Department drew up a provisional seniority list on the basis
of the recommenda- tions of the said Commission by taking the date of
approval/selection by the Commission in respect of each candidate as the basis
for determining the length of contin- uous officiation. The Department
supported its action on the ground that it had prepared the list by reckoning
seniority from the date of their "substantive appointments" in
accord- ance with an earlier Government Order of 1940 which pre- scribed
certain guidelines or model rules for framing rules governing conditions of
service. The model set out in the order suggested two independent principles
for determining seniority, namely, (i) the date of substantive appointment and
(ii) the date of the order of first appointment, if such appointment is
followed by confirmation. In the seniority list, the petitioners were placed
below the respondents though they were initially appointed prior to the
respond- ents. This Court quashed the seniority list holding that the question
as to from what date the service is to be reckoned will depend upon the facts
and circumstances of each case.
observed there that:
officiating appointment is followed by confirmation, unless a contrary rule is
shown, the service rendered as officiating appointment cannot be ignored for
reckoning length of continuous officiation for determining the place in the
seniority list. If the first appointment is made by not following the
prescribed procedure but later on the appointee is approved making his
appointment regular, then in the absence of the contrary rule, the approval
which means confirmation by the authority which had the authority, power and
jurisdiction to make appointment or recommend for appointment, will relate back
to the date on which first appointment is made .................. If a stopgap ap-
pointment is made and the appointee appears before the Public Service
Commission when the latter proceeds to select the candidates and is selected,
there is no justification for ignoring his past service. At any rate, there is
no justification for two persons selected in the same manner being differently
treated." (emphasis ours) The Court also found there that the earlier
order of 1940 had not prescribed any binding rule of seniority and assum- ing
that it did, the 138 seniority list did not conform to the model. The model set
out in the Government Order prescribed two different start- ing points for
reckoning seniority and it was difficult to assume that the department adopted
one and rejected the other without making a specific rule in that behalf.
will thus be clear that the Court was dealing with an altogether different
situation in both the aforesaid cases.
was no dispute in those cases that except for the terminology and nomenclature
there was no distinction be- tween a temporary and permanent appointment and
all that remained to be done in those cases was the formalisation of the
appointments. That is not the situation in the present case. The appellants
were ineligible to be appointed as Assistant Engineers initially. Their
appointments were made specifically under the power given to the Government to
make ad hoc appointments for administrative exigency. The ap- pointment orders
made it clear that the appointments were in the said special circumstances and
that they will not be deemed to determine seniority for any purpose whatsoever.
is further no dispute that no appointments could be made as Assistant Engineers
except by way of either direct recruitment through the Public Service
Commission or promo- tion through the selection made by the D.P.C. as per the
quota assigned to different categories. The first D.P.C.
met for selection, after the appellants became quali- fied for being promoted,
was held on October 12,
1972. It is in this
meeting that the appellants were selected along with the other qualified promotees,
namely, respondents 2 to 39.
D.P.C. further had the power also to arrange the senior- ity of the promotees
according to merits. For all purposes, therefore, the appointment of the
appellants on July 22,
1971 was ad hoc and
not according to rules. Their selection/appointment on November 22, 1972 by the D.P.C was further not a mere
formality or a process undertaken only for formalisation of their earlier
appointment. In the circumstances, their appointment on November 22, 1972 could
not relate back to July 22, 1971 and hence they were not entitled to claim
their officiation between July 22, 1971 and November 22, 1972 for being counted
for the purposes of their seniority for placing them either above respondents
40 to 63, who were directly recruited on August 7, 1972 or above respondents 2
to 39, who were promoted by the D.P.C.
with them, on November
22, 1972, and who
happened to be senior to them even as Junior Engineers.
other leg of the aforesaid contention was that the appellants were appointed
under Rule 7(4) of the said Rules and not under 139 the proviso to Rule 19 of
the Rules inasmuch as under the latter provision, their appointments could not
have been made. The argument was that the latter provision permitted
appointments for an administrative exigency only in vacan- cies which did not
last for more than three months. Since the appellants continued in the post for
more than a year before they were selected on November 22, 1972, it should be held that their appointment was under Rule
7(4) of the Rules. As has been pointed out by the High Court, the re- course to
Rule 7(4) is unwarranted because that provision deals with the method of
recruitment and permits the State Government to adopt any method other than
those provided there.One of the methods permitted by that provision admit- tedly
is promotion, and since the appellants were admittedly promoted, though they
were not qualified on that date, their case would not be covered by the third
method of recruitment which is other than the one prescribed there. Therefore,
the argument that they should be considered to have been re- cruited to the
post of Assistant Engineer by a method other than that expressly provided by
the said Rule 7(4) is only to be stated to be rejected. Once it is held that
they were promoted on ad hoc basis, what comes in the play is the proviso to
Rule 19(1) which permitted the Government to make such ad hoc appointments for
purely administrative exigen- cies.
then contended that since the proviso to Rule 19(1) permitted appointments in
vacancies which were to last for more than three months, it should be held that
after the appellants became eligible during the first three months of their
appointment, their further continuation was on regular basis. This argument has
also no substance in it, for as pointed out earlier, for being selected for
appointment as Assistant Engineers, the appellants had to face the D.P.C. and
the Government had no power to make regular appointments to the said post
unless the D.P.C. had selected the candi- dates for the posts. Secondly, the
proviso to Rule 19(1) has to be read liberally. The said provision has to be inter-
preted to mean that the appointments under the said provi- sion can be made for
three months at a time. Thus there was nothing to prevent the State Government
from renewing the appointment of the appellants every three months.
second contention is directed against the senior- ity of respondents 2 to 39
and proceeds on the ground that the weightage given to them is illegal. This
contention must also fail for the following reasons. Admittedly the Rules of
Recruitment prescribe appointments to the post of Assistant Engineer from two
sources, namely, (i) by direct recruitment and (ii) by promotion in the
proportion of 50--50.
The promotional posts are further required to be filled in from three different
cadres in the following proportion:
25% from Junior Engineers (ii) 20% from Overseers (iii) 5% from Head
the Madhya Pradesh P.W.D. (non-gazetted) Recruitment Rules of 1972 (hereinafter
referred to as 1972 Rules), the Overseers who acquire an Engineering degree or
qualify for A.M.I.E. become eligible for promotion to the post of Junior
Engineers as soon as the vacancy arises. The inter se sen- iority between the
Overseers and the Junior Engineers in the cadre of Junior Engineers is to be
fixed in accordance with Rule 14(3) of the said Rules by giving weightage of
two months for every year of their service to the Overseers.
the D.P.C. met on October
12, 1972 and considered
the cases both of the appellants and the respondents, the Com- mittee had
submitted the names of the selected candidates cadre-wise, i.e.. separately of
Junior Engineers, Overseers, Head-Draftsmen/Draftsmen. The General
Administration Depart- ment thereafter considered the matter. Under the Rules,
the Overseers were required to obtain an Engineering degree or qualify for
A.M.I.E. and were also required to serve for 12 years as Overseers to become
eligible for being considered for appointment as Assistant Engineers. As
against this, the Junior Engineers who were degree holders were required to
serve only for two years to become eligible for being con- sidered to the said
post. Taking these aspects into consid- eration their inter se seniority,
namely, the interse sen- iority of the appellants and the Overseers promotee respon-
deets was fixed by the Government according to the following formula which was
in vogue for a number of years:
the cadre of Junior Engineers, Overseers so promoted were given weightage as
per Rules of 1972, and promotional dates for seniority in the cadre were fixed
the cadre of Assistant Engineers, the date of reckon- ing of seniority was the
one on which Junior Engineer or Overseer or Head-Draftsman/Draftsman completed
the respec- tive span of service for eligibility.
when seniority was fixed as per the impugned seniori- ty list of 141 the cadre
of Assistant Engineers, when admittedly the Rules of 1972 were in vogue, it was
fixed according to the afore- said formula. There is no dispute that according
to the said formula, which can hardly be faulted, respondents 2 to 39 who were
senior as Junior Engineers, were entitled to sen- iority over the appellants.
It may further be pointed out that the Rules of 1972 were not challenged either
before the High Court or before us. All that was challenged before the High
Court was that these Rules were restricted in their application only to the
promotions made to the post of Junior Engineers and were not applicable to the
promotions made to the post of Assistant Engineers. On the face of it, such a
challenge is meaningless because Rule 14 of the said Rules is clearly meant for
the promotions to the post of Assistant Engineers. Otherwise the seniority
given to the Overseers etc. in the seniority list of Junior Engineers on the
basis of the their service as Overseers, is meaningless.
all these reasons, we find no substance in this conten- tion either.
We, therefore, confirm the decision of the High Court and dismiss the appeal.
There will, however, be no order as to costs.
N.J. Appeal dismissed.