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Y.H. Pawar Vs. State of Karnataka & Anr [1996] INSC 391 (14 March 1996)

Ramaswamy, K.Ramaswamy, K.Bharucha S.P. (J) Paripoornan, K.S.(J)

CITATION: JT 1996 (5) 521 1996 SCALE (3)508

ACT:

HEAD NOTE:

O R D E R

Leave granted.

We have heard learned counsel on both sides.

Appellant was appointed as a Class III employee on A basis on March 22, 1960, after his name was called from the Employment Exchange, in the Directorate of Public Health. In 1960, the Ministerial Recruitment Rules had come into force but the appellant was not regularized in the service. He came to be regularized on May 6, 1968 giving him seniority with effect from the date bn which the selection was made.

The appellant challenged the action in O.A. No. 1007/93 in the Karnataka Administrative Tribunal which by the impugned order dated April 30, 1993 dismissed the application. Thus this appeal by special leave.

It is contended by learned counsel for the appellant that no statutory rules were in existence when he was appointed. government issued orders that if the appointments were made by the government or with the sanction of the Government the appointments would be regular appointments.

Therefore, he must be deemed to have been appointed on regular basis with effect from the initial date of appointment. His seniority has thus to be reckoned from that date. It is contended, on the other hand, by learned counsel for the respondents that at the relevant time no regular recruitment was sought to be made. Local candidates were appointed on ad hoc basis. After the statutory Rules came to be made, their services have been regularized with effect from the date of coming into force of the Rules. The action taken by the Government was upheld by the Administrative Tribunal following decision in Gurulingaswamy v. State Application No.663 of 1989] which was followed in this petition. Therefore, when the earlier candidates have been regularized according to the statutory Rules, the appellant cannot claim higher rank.

It is contended by the learned counsel for the appellant that in view of the judgment of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra & Ors.[(1990) 2 SCC 715] where appointment was made on regular basis, the seniority was required to be determined with effect from the initial date of appointment. We find no force in the contentions. As seen the appointments are made on ad hoc basis without conducting any competitive examination. As and when vacancy had arisen local candidates were called from Employment Exchange and were appointed. Therefore, the appointments cannot be considered to have been made on regular basis. When the Rules came to be made, all the appointments are sought to be regularized. The sanction given by the Government for such an appointment is only to enable the candidates to continue till the statutory Rules are made to regularize the services.

This Court in Excise Commissioner Karnataka & Anr. v. V. Sreekanta [(1993) Supp. 3 SCC 53], in similar circumstances had considered the effect of such an appointment in paragraph 14 which reads thus:

"After giving our anxious consideration to the respective contention of the parties it appears to us that the writ petitioned respondent, Sri V. Sreekanta, was appointed as a local candidate through Employment Exchange in view of the specific sanction of the government for such ad hoc appointment. The terms of appointment in the context of sanction of the said posts by the Government, in our view, clearly demonstrates that such appointment of the said respondent and other employees in 1968 was ad hoc appointment given to local candidates being sponsored by the local Employment Exchange. It was only on October 26, 1971, the said respondent became eligible to be recruited in the said Class III post, and such appointment or regularization of his ad hoc appointment was made possible because of the framing of the said Special Rules of Recruitment in 1970. In our view, Mr. Narasimha Murthy is justified in his submission that the respondent was not entitled to claim seniority from the date of his initial appointment on ad hoc basis but he was only entitled to claim seniority from the date of his subsequent appointment or regularization under the said Special Rules of Recruitment in 1970. It appears to us that under Rule 3 of the said Special Rules of Recruitment of 1970, the respondent, having possessed the minimum qualifications prescribed be the said Special Rules of Recruitment for recruitment to Class III posts and the said respondent having been appointed on or after January 1, 1965 as a local candidate to a Class III post and having put in a continuous service of one year prior to October 1, 1970, was eligible to be appointed under the said Special Rules of Recruitment and the respondent was given such appointment with effect from October 26, 1971 under the said Special Rules of Recruitment of 1970. The said respondent was entitled to be treated as direct recruit properly made under the said Special Rules of 1970 only from October 26, 1971 and the service rendered by him prior to the said date was only on the basis of ad hoc employment not made in accordance with the rules of recruitment. In the aforesaid circumstances, the decision of the division Bench of the Karnataka High Court appears to be clearly erroneous and we have no hesitation in setting aside the same. Learned Single Bench of the Karnataka High Court in our view, has rightly dismissed the writ petition and we affirm the said decision. The appeal is accordingly allowed without any order as to costs." In that view of the matter, we hold that the appointment of the appellant is only an ad hoc appointment.

Accordingly, his seniority is to be determined with effect from the date on which the statutory Rules came into force. the appeal is dismissed accordingly. No costs.

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