Ashok Gulati & Ors Vs. B.S. Jain
& Ors [1986] INSC 269 (17 December 1986)
SEN, A.P. (J) SEN, A.P. (J) NATRAJAN, S. (J)
CITATION: 1987 AIR 424 1987 SCR (1) 603 1986
SCC Supl. 597 JT 1987 (1) 92 1986 SCALE (2)1062
CITATOR INFO:
RF 1987 SC 415 (2) RF 1987 SC1676 (26) R 1988
SC 268 (25) F 1988 SC 654 (2) D 1989 SC 278 (20,21) RF 1990 SC 857 (8) RF 1991
SC 518 (1,3) D 1992 SC 922 (16)
ACT:
Jurisdiction of High Court under Article 226
of the Constitution-When the impugned order itself is for a temporary period of
six months and subject to the rights of others, propriety of the issuance of
Rule Nisi and making it absolute after years, at the instance of an aggrieved
party.
Temporary Service on ad hoc basis and dehors
the rules, counting of--Whether such service rendered by the Asst.
Engineers would count for the purposes of
seniority in the cadre of Asst. Engineers and also for the purposes of promotion
to Class I Executive Engineers--Haryana Service of Engineers Class II Public
Works Department (Irrigation Branch) Rules, 1964 and Haryana Service of
Engineers Class I Public Works Department (Irrigation Branch) Rules, 1964 as
amended in 1975 Rules 2(5), 6(b), 15 and 22, scope of Words and
Phrases--Meaning of "Prescribed" in Rule 15 whether there was relaxation
of rule---If so, whether such a relaxation is discriminatory and violative of
Articles 14 and 16 of the Constitution.
HEADNOTE:
Haryana Service of Engineers, Class II,
Public Works Department (Irrigation Branch) Rules relating to recruitment etc.
of Asst. Engineers and Haryana Service of Engineers Class I, Public Works
Department (Irrigation Branch) relating to Executive Engineers came into force
in 1970 and 1964 respectively. Respondent No. 2, B.L. Gupta and Respondents
Nos. B.S. Jain were appointed as temporary engineers (adhoc) with effect from
19.5.1969 and 2.1.1971 respectively, the former sponsored by the Employment
Exchange and the latter with reference to an advertisement in the newspapers.
Their appointments were de hors the said
Class II Rules to meet the exigencies of service. In the letters of appointment
issued to them it was specified (i) that their appointment was purely on an
ad-hoc basis for a period of six months from the date of their joining the post
on a fixed salary of Rs.400 plus allowances and their services were terminable
without notice; (ii) that the appointment would not entitle them to any
seniority or other benefit under the service rules for the time being in force
and would also not count towards increment in their salary; (iii) that the
posts of Temporary Engineers in Class II service would be advertised in the
course by the Haryana Public Service Commission and they should apply for such
posts through the Commission, and that if they were not selected by the
Commission, their services would be liable to be terminated without notice; and
(iv) that their inter-se seniority among the Temporary Engineers would be in
the order of merit in the list of candidates as settled by the Commission. The
services of respondents Nos. 1 and 2 were however continued by the State
Government from time to time, six months at a time till the Secretary, Haryana
Public Service Commission by his letter dated July 8, 1973 addressed to the
Commissioner and Secretary to the State Government of Haryana, Public Works
Department (Irrigation Branch) conveyed the approval of the Commission to the
ad-hoc appointment of 251 Temporary Engineers beyond the period of six months
till regular appointments were made to the posts through the Commission.
Accordingly both these respondents continued to hold the posts of Temporary
Engineers on ad-hoc basis till the end of the year 1974 i.e. till they were
recruited as Asst. Engineers through the Public Service Commission on April 21,
1975 on regular basis. In the letter of appointment issued by the Commissioner
and Secretary to Government of Haryana (Irrigation & Power Department)
dated January 13, 1975 it was specified again that inter-se seniority of Asst.
Engineers would be determined on the basis of the combined merit list prepared
by the Public Service Commission. In the combined merit list prepared by the
Commission, respondents Nos. 1 and 2 were placed very much below the appellants
and respondents Nos. 5-24 being at serial Nos. 148 and 150 respectively.
The State Government of Haryana by order
dated December 20, 1978 promoted 62 Asst. Engineers including the appellants
and respondent Nos. 5-24 as Executive Engineers on a purely ad-hoc basis for a
period of six months subject to certain terms and conditions, namely; (i) the
promotions were subject to the approval of the Public Service Commission as
also to the claims of other officers; (ii) such promotions were not to give any
right to the officers for being appointed on a substantive basis as Executive
Engineers; and (iii) such of the officers as had not passed the departmental
professional and revenue examinations were required to pass such examination
within a period of one year or otherwise they were liable to be reverted to
their original post. These ad-hoc promotions of the appellants and respondents
Nos. 5-24 were made in relaxation of the provisions contained in rr. 6(b) and
15 of the Haryana Service of Engineers, Class I Public Works Department
(irrigation Branch) Rules, 1964. Presumably, the State Government excluded from
consideration the case of respondents Nos. 1 and 2 for 605 promotion because in
the combined seniority list they ranked below the appellants and respondents
Nos. 5-24 being placed at serial Nos. I48 and 150 respectively.
The said ad-hoc promotions to Class I posts
were assailed by respondents I and 2 by a petition under Article 226. A learned
Single Judge by his judgment dated 8.10.1980 quashed the impugned order of the
State Government making the said ad hoc promotions and directed the State
Government to reach a decision afresh as regards the ad hoc promotions with
advertence to the observations made by him. Thereupon, the appellants preferred
an appeal under clause 10 of the Letters Patent but the appeal was dismissed in
limine by the Division Bench, by its order dated 6.11.1980. The appellants'
contention that the appointment of respondents Nos. I and 2 as Temporary
Engineers on an ad-hoc basis was contrary to para 8.312 of the Manual of
Administration and therefore the period during which they worked as Temporary
Engineers (ad-hoc) could not be taken into consideration, was repelled by the
Bench on the ground that no such point was taken before the learned Single
Judge. Hence the appeal by special leave.
Allowing the appeal, the Court
HELD: 1. The High Court ought not to have
exercised their powers under Article 226 of the Constitution and entertained
the writ petition of respondents I and 2 particularly when the impugned order
of the State Government making promotion of the 62 Asst. Engineers including
the appellants and respondents 5-24 as Executive Engineers was purely on an
ad-hoc basis for a period of six months and expressly made subject to the
rights of other officers.
Instead of interfering with the impugned
order of the State Government the proper course for the High Court should have
been to issue a direction to the State Government to consider the cases of the
eligible officers including respondents Nos. I and 2 for ad-hoc promotion as Executive
Engineer if their turn was due for such promotion according to their placement
in the seniority list and it should have in the meanwhile allowed the
appellants and respondents Nos. 5-24 to continue in their posts as Executive
Engineers (ad-hoc) subject to the condition that while considering their cases
for promotion the State Government would not take that circumstance into
consideration that they had continued to function as Executive Engineers on an
ad-hoc basis. [613G-H;
614A-C]
1.2 Rule 15 of the Punjab/Haryana Service of
Engineers Class I P.W.D. (Irrigation Branch) Rules, 1970 in terms provides that
the 606 departmental professional and revenue examinations for purposes of
promotion to the Class I service have to be passed within such period as may be
prescribed. The word 'prescribed' in Rule 15 clearly empowers the State Government
to provide for the period during which the promoted officers had to pass the
departmental test. In terms of that rule, the State Government by the impugned
order directed that the officers who had not passed the departmental professional
and revenue examinations were required to pass such examinations within a
period of one year otherwise they were liable to be reverted to their original
post. Therefore, no question of relaxation under Rule 22 arose. [613CE]
2.1 The period of service rendered by persons
like respondents Nos. 1 and 2 who were appointed on ad hoc basis purely on a
stop gap arrangement for six months at a time de hors the rules, cannot be considered
for purposes of their seniority in Class II service or in reckoning their eligibility
of 8 years' service in that class of service under Rule 6(b) of the Class I
Rules. [625F-G] 2.2. As a matter of construction the words "Class II
service" in Rule 8(2) introduced by amendment in 1975 must be construed to
have the same meaning as the expression "Class II service" as defined
in Rule 2(5). Prior to the amendment in 1975, the expression, "Class II
Service" as defined in Rule 2(5) meant the members of Class II service
including Temporary Engineers. The key to the interpretation of the definition
clause in Rule 2(5) is the words "for the purpose of promotion." The
effect of the enlarged definition of Class II service in Rule 2(5) is that these
words when found in the Act must, for the purpose of promotion, be understood
in that context in a certain sense i.e. to include not only members of CIass II
Service including Temporary Engineers but also Offg. Sub-Division Officers and
Offg. Assistant Design Engineers who, but for the interpretation clause, would
not be so included. That would be in consonance with the purpose and object of
the amendment.
[619G-H; 620B-C]
2.3 The meaning of the word "as" in
the collocation of the words "any service rendered as a Temporary
Engineer" in Explanation to Rule 6(b) of the Class I Rules must obviously
mean "in the capacity of". [621A-B] Dr. Asim Kumar Bose v. Union of
India & Ors., [1983] 1 SCC 345, applied.
2.4 It is true that though respondents Nos. 1
and 2 were 607 appointed as Temporary Engineers on an ad-hoc basis, they should
be deprived of the period of their officiation as such till they were absorbed
to the post of Assistant Engineer on a regular basis through the Public Service
Commission on April 21, 1975. That is a legal consequence which cannot be
avoided on well-settled principles. [623D-E]
2.5 According to the accepted cannos of
service jurisprudence, seniority of a person appointed must be reckoned from
the date he becomes a member of the service. The date from which seniority is
to be reckoned may be laid down by rules or instructions (a) on the basis of
the date of appointment (b) on the basis of confirmation (c) on the basis of
regularisation of service (d) on the basis of length of service; or (e) on any
other reasonable basis. It is wellsettled that an ad-hoc or fortuitous
appointment on a temporary or stop-gap basis cannot be taken into account for
the purpose of seniority even if the appointee was qualified to hold the post
on a regular basis, as such temporary tenure hardly counts for seniority in any
system of service jurisprudence. [624B-D]
2.6 It must now be well taken as well
established that after the Supreme Court decisions from N.K. Chauhan to
Baleswar Das in the absence of any other valid principle of seniority, the
inter-se seniority between direct recruits and promotees should as far as
possible be determined by the length of continuous service whether temporary or
permanent in a particular grade or post (this should exclude periods for which
an appointment is held in a purely stop-gap or fortuitous arrangement). These
decisions particularly thatin Baleshwar Das's case clearly lay down that
ordinarily and in the absence of any specific rule of seniority governing the
cadre or service, the length of continuous officiation should be counted in
reckoning seniority as between direct recruits and promotees. These authorities
nowhere lay down that the same principle i.e. the length of continuous officiation
must be the sole guiding factor and the only criterion in determining seniority
of such adhoc employees vis-a-vis direct recruits. On the contrary, they
clearly proceed on the principle that persons appointed on an ad-hoc basis or
for fortuitous reasons or by stop-gap arrangement, constitute a class which is
separate and distinct from those who are appointed to posts in the service in
strict conformity with the rules of recruitment. [629E-G; 627.E-F] N.K. Chauhan
& Ors. v. State of Gujarat & Ors., [1977] 1 SCR 1037; S.B. Patwardhan
& Ors. v. State of Maharashtra & Ors., [1977] SCR 775; and Baleshwar
Das & Ors. v. State of Uttar Pradesh & Ors., [1981] 1 SCR 449,
discussed.
608 A.P.M. Mayakutty etc. v. Secretary,
Public Service Department, [1977] 2 SCR 937; State of Gujarat v.C.G. Desai
Ors., [1983] 3 SCC 601; O.P. Singla v. Union
of India, [1984] 4 SCC 450; G.S. Lamba v. Union of India, [1985] 2 SCC 604;
P.S. Mahal v. Union of India, [1984] 4 SCC 545; and Pran Krishna Goswami &
Ors. v. State of West Bengal & Ors., [1985] Suppl. SCC 221, referred to.
Narendra Chadha & Ors. v. Union of India
& Ors., [1986] 2 SCC 157; G.P. Doval & Ors. v. The Chief Secretary,
Government of Uttar Pradesh & Ors., [1985] 1 SCR 70; and C.P.
Damodaran Nayar v. State of Kerala &
Ors., [1974] 2 SCR 867, distinguished.
& CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 149 of 1981.
From the Judgment and Order dated 6.11. 1980
of the Punjab and Haryana High Court in C.P.A. No. 811 of 1980.
M.K. Ramamurthy, U.R. Lalit, Shanti Bhushan,
M.R. Sharma, P.P. Rao, S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam, P.P.
Sharma, K.S. Tiwari, C.V. Subba Rao, I.S. Goel, P.H.
Parekh, Sohail Dutt, Uma Datta and V.P. Goel
for the appearing parties.
The Judgment of the Court was delivered by
SEN, J. In this appeal by special leave, the short question involved is whether
respondents Nos. 1 and 2 were entitled to the benefits of the period of service
rendered by them as Temporary Engineers on an ad-hoc basis in the Irrigation
Branch of the Public Works Department, State of Haryana i.e. prior to their
appointment as Assistant Engineers on regular basis on April 21, 1975 along
with the six appellants and respondents Nos. 5-24 for purposes of reckoning
their eligibility for promotion to the post of Executive Engineer under r.6(b)
read with the Explanation thereto of the Haryana Service of Engineers, Class I,
Public Works Department (Irrigation Branch) Rules, 1964, as amended in 1975,
('Class I Rules' for short) as also for purposes of their seniority in the cadre
of Assistant Engineers.
Facts bearing on the question are as follows.
In response to an advertisement published in the Daily Tribune of February 6,
1970 inviting applications for appointment as Temporary Engineers on an ad-hoc
basis, respondent No. 1 B.S. Jain was appointed as a Tem609 porary Engineer
(ad-hoc) w.e.f. January 2, 1971 for a period of six months i.e. after the
coming into force of the Haryana Service of Engineers, Class II, Public Works
Department (Irrigation Branch) Rules, 1964 ('Class II Rules' for short). Prior
to this, respondents No. 2 S.L. Gupta was also appointed as a Temporary
Engineer on an ad-hoc basis w.e.f. May 19, 1969 by calling his name through the
Employment Exchange i.e. subsequent to the coming into force of the Class II
Rules. Their appointments were de hors the rules to meet the exigencies of
service. In the letters of appointment issued to them, it was specified that
their appointment was purely on an ad-hoc basis for a period of six months from
the date of their joining the post on a fixed salary of Rs.400 plus allowances
and their services were terminable without notice. They were specifically
informed that the appointment would not entitle them to any seniority or other
benefit under the service rules for the time being in force and would also not
count towards increment in their salary.
They were also intimated that the posts of
Temporary Engineers in Class II service would be advertised in due course by
the Haryana Public Service Commission and they should apply for such posts
through the Commission, and that if they were not selected by the Commission,
their services would be liable to be terminated without notice. Also that their
inter-se seniority among the Temporary Engineers would be in the order of merit
in the list of candidates as settled by the Commission. The services of
respondents Nos. 1 and 2 were however continued by the State Government from
time to time, six months at a time, till the Secretary, Haryana Public Service
Commission by his letter dated July 8, 1973 addressed to the Commissioner and
Secretary to the State Government of Haryana, Public Works Department (Irrigation
Branch) conveyed the approval of the Commission to the ad-hoc appointment of
251 Temporary Engineers beyond the period of six months till regular
appointments were made to the posts through the Commission. Accordingly, both
these respondents continued to hold the posts of Temporary Engineers on ad-hoc
basis till the end of the year 1974 i.e. till they were recruited as Assistant
Engineers through the Public Service Commission on April 21, 1975 on regular
basis.
It appears that in response to an
advertisement issued by the Public Service Commission in October 1973, respondents
Nos. 1 & 2 appeared at a competitive examination along with the appellants
and respondents Nos. 5-24 and were selected by the Public Service Commission
for appointment as Assistant Engineers under the Haryana Service of Engineers,
Class II, Public Works Department (Irrigation Branch) Rules, 1970. In the
letter of appointment issued by 610 the Commissioner and Secretary to
Government of Haryana (Irrigation & Power Department) dated January 13,
1975 it was specified that inter-se seniority of Assistant Engineers would be
determined on the basis of the combined merit list prepared by the Public
Service Commission: In the combined merit list prepared by the Commission,
respondents Nos. 1 & 2 were placed very much below the appellants and
respondents Nos. 5-24 being at serial Nos. 148 and 150 respectively. It may be
stated that the merit list prepared by the Commission has never been questioned
before us.
A few more facts. The State Government of
Haryana by order dated December 20, 1978 promoted 62 Assistant Engineers
including the appellants and respondents Nos. 5-24 as Executive Engineers on a
purely ad-hoc basis for a period of six months subject to certain terms and
conditions. namely:
(i) The promotions were subject to the
approval of the Public Service Commission as also to the claims of other officers.
(ii) Such promotions were not to give any right to the officers for being
appointed on a substantive basis as Executive Engineers. And (iii) Such of the
officers as had not passed the departmental professional and revenue examinations
were required to pass such examinations within a period of one year or
otherwise they were liable to be reverted to their original post. These ad-hoc
promotions of the appellants and respondents Nos. 5-24 were made in relaxation
of the provisions contained in rr.6(b) and 15 of the Haryana Service of
Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964.
Presumably, the State Government excluded from consideration the case of
respondents Nos. 1 & 2 for promotion because in the combined seniority list
they ranked below the appellants and respondents Nos. 5-24 being placed at
serial Nos. 148 and 150 respectively.
The ad-hoc promotion of appellants and
respondents Nos. 5-24 was assailed by respondents Nos. 1 & 2 by a petition
under Art. 226 of the Constitution filed before the Punjab & Haryana High
Court mainly on the ground that when qualified persons like them i.e.
respondents Nos. 1 & 2 were eligible for being considered for promotion to
the post of Executive Engineer under r. 6(b), there was no justification
whatever for the State Government to grant general relaxation under the proviso
thereof to make the ineligible persons eligible for promotion in denial of
their claims. It was further pleaded that the State Government having relaxed the
condition of eligibility under the proviso to r.6(b) read with the Explanation
thereof as regards eight years service in the case of promotion of the
appellants and respon611 dents Nos. 5-24 as Executive Engineer on an ad-hoc
basis, failed to appreciate that respondents Nos. 1 & 2 who were recruited
along with them and had also put in more or less 31/2 years service as
Assistant Engineers became entitled to the benefit of such relaxation and the
action of the State Government in not considering their cases for such
promotion was wholly arbitrary and was tantamount to denial of equal
opportunity in the matter of employment in violation of Arts. 14 and 16(1) of
the Constitution. It was also pleaded that the power conferred on the State
Government to grant relaxation under r.22 was not a general power but a power
to mitigate hardship in a particular case and thus the general relaxation
granted by the State Government to some of the respondents who had not passed
their departmental professional and revenue examinations was invalid. It was
asserted that the State Government and the Engineer-in-Chief, Irrigation
Department, Haryana had wrongly treated respondents Nos. 1 & 2 as
ineligible for promotion on the ground that the period from January 1971 and May
1969 upto April 21, 1975 i.e. the period during which respondents Nos. 1 &
2 remained employed as Temporary Engineers on ad-hoc basis, could not be
treated as period in that class of service within the meaning of r.6(b) i.e. in
Class II service.
The specific stand taken by the State
Government in the return filed before the High Court was that respondents Nos.
1 & 2 were recruited to the post of
Assistant Engineer on April 21, 1975 and thus had only about 31/2 years service
on December 20, 1978 to their credit when appellants and respondents Nos. 5-24
were promoted as Executive Engineers on an ad-hoc basis. Prior to their
appointment as Assistant Engineers, respondents Nos. 1 & 2 had been
appointed as Temporary Engineers on ad-hoc basis de hors the rules and under
the terms of appointment they were not entitled to any seniority or other
benefit under the service rules as a result of such appointment. Further, it
was pleaded that respondents Nos. 1 & 2 in the seniority list prepared by
the Public Service Commission were ranked junior to the appellants and
respondents Nos. 5-24 and therefore they were not entitled to be considered for
promotion.
A learned Single Judge (R.N. Mittal, J.) by
his judgment dated October 8, 1980 quashed the impugned order of the State
Government making ad-hoc promotions of the appellants and respondents Nos. 5-24
and directed the State Government to reach a decision afresh as regards the
ad-hoc promotions with advertence to the observations made by him. In his
judgment the learned Single Judge repelled the contention of respondents Nos.
5-24 for being considered for promo612 tion since none of them had completed
eight years' service as Assistant Engineer on the ground that the State Government
was empowered in terms of proviso to r. 6(b) to relax generally, in public
interest, the condition regarding eight years' experience for reasons to be
recorded in writing. He found on perusal of the records placed before him that
reasons for the relaxation in public interest of the condition of eight years'
service imposed by r.6(b) had in fact been recorded for reducing the period to
31/2 years in consultation with the Finance Department. He accordingly held
that the ad-hoc promotion of the appellants and respondents Nos. 5-24 was not
invalid on that account. The learned Single Judge however accepted the
contention of respondents Nos. 1 & 2 that they were entitled to the benefit
of the period of continuous officiation as Temporary Engineers on an ad-hoc
basis from January 1971 and May 1969 to April 21, 1975 in reckoning eight
years' experience in that class of service within the meaning of r.6(b) i.e.
Class II service by reason of Explanation to
r. 6(b) and were therefore eligible for promotion to the post of Executive
Engineer under r. 8(2) in view of the definition of the expression 'Temporary
Engineer' contained in r.2(5), as amended in 1975. He also upheld their
contention that the power conferred on the State Government under r.22 was not
a general power of relaxation but a power exercisable only to mitigate any
undue hardship in the case of a particular individual and therefore the
impugned order of the State Government permitting relaxation in the case of
respondents Nos. 9, 10 and 11 Gyan Singh, P.D. Kadian and C.P. Goel as regards
the passing of the departmental professional and revenue examinations as
required by r. 15 was invalid. Upon that view, the learned Single Judge allowed
the Writ Petition and quashed the impugned order of the State Government for
the ad-hoc promotion of the appellants and respondents Nos. 5-24 as Executive
Engineers. Incidentally, the judgment of the learned Single Judge leaves
untouched the impugned order insofar as it relates to the ad-hoc promotion of
37 Assistant Engineers to the post of Executive Engineer.
Thereupon, the appellants preferred an appeal
under cl. 10 of the letters patent but the appeal was dismissed in limine by a
Division Bench (P.C. Jain & C.S. Tiwana, JJ) by its order dated November 6,
1980. The learned Judges stated that they were in full agreement with the view
expressed by the learned Single Judge. The appellants apparently advanced a
contention that the appointment of respondents Nos. 1 & 2 as Temporary
Engineers on an ad-hoc basis was contrary to Para 8.312 of the Manual of
Administration and therefore the period during which they worked as Temporary
Engineers (adhoc) could not 613 be taken into consideration. The learned Judges
repelled the contention on the ground that no such point was taken before the
learned Single Judge.
We must at the very outset observe that the
judgment of the learned Single Judge quashing the impugned order of the State
Government for the promotion of the appellants and respondents Nos. 5-24 as
Executive Engineers on an ad-hoc basis on the ground that the State Government
could not have relaxed the condition of passing the departmental professional
and revenue examinations prescribed under r. 15 of the Class I Rules by taking
recourse to r. 22 which did not confer a general power of relaxation can hardly
be sustained. We are afraid, the learned Single Judge was completely misled in
taking the view that he did. This was not a case of relaxation at all but a
question of prescribing the period during which such examination had to be
cleared as required under r. 15. R. 15 in terms provides that the departmental
professional and revenue examinations for purposes of promotion to the Class I
service have to be passed within such period as may be prescribed. The word
'prescribed' in r. 15 clearly empowers the State Government to provide for the
period during which the promoted officers had to pass the departmental test. In
terms of that rule, the State Government by the impugned order directed that
the officers who had not passed the departmental professional and revenue
examinations were required to pass such examinations within a period of one
year otherwise they were liable to be reverted to their original post. It must
be said in all fairness that learned counsel for respondents Nos. 1 & 2 did
not support this part of the Judgment.
After having heard learned counselor the
parties quite at some length in a heating lasting over several days, we feel
that irrespective c f the merits of the contentions advanced, no useful purpose
would be served in maintaining the judgment of the High Court insofar as it
quashes the impugned order of the State Government dated December 20, 1978 for
the promotion of the appellants and respondents Nos. 5-24 as Executive
Engineers on an ad-hoc basis after a lapse of such a long time as it would
create unnecessary administrative complications. During the heating we expressed
our doubts about the wisdom of the High Court in entertaining the Writ Petition
of respondents Nos. 1 & 2 particularly when the impugned order of the State
Government making promotion of the 62 Assistant Engineers including the
appellants and respondents Nos. 5-24 as Executive Engineers was purely on an
ad-hoc basis for a period of six months and expressly made subject to the
fights of other officers.
Instead of interfering with the impugned 614
order of the State Government the proper course for the High Court should have
been to issue a direction to the State Government to consider the cases of the
eligible officers including respondents Nos. 1 & 2 for ad-hoc promotion as
Executive Engineers if their turn was due for such promotion according to their
placement in the seniority list and it should have in the meanwhile allowed the
appellants and respondents Nos.-5-24 to continue in their posts as Executive
Engineers (ad-hoc) subject to the condition that while considering their cases
for promotion the State Government would not take that circumstance into
consideration that they had continued to function as Executive Engineers on an
ad-hoc basis.
That course commends to us for another reason
as well.
Although the High Court by its judgment and
order dated October 8, 1980 quashed the impugned order of the State Government
dated December 20, 1978 making the ad-hoc promotions and issued a direction
that the Government should reach a decision afresh in the matter, the fact
remains that neither the judgment of the High Court nor the directions made by
it have taken effect. On the contrary, this Court while granting special leave
on January 14, 1981 stayed the operation of the judgment of the High Court. As
a consequence, the result has been that the appellants and respondents Nos.
5-24 have continued to function as Executive Engineers on an ad-hoc basis for
the last about eight years under the interim order of stay. Incidentally, the
judgment of the High Court leaves untouched the promotion of 37 Assistant
Engineers and Executive Engineers. The State Government will also have to give
effect to the decision of this Court in A.S. Parmar's v. State of Haryana,
[1984] 2 SCR 476 laying down that a degree in Engineering was 'not an essential
qualification for promotion of Assistant Engineers in the Irrigation Branch to
the cadre of Executive Engineers in Class I service under r.6(b) of the Class I
Rules and therefore the Assistant Engineers who are diploma holders are equally
eligible for such promotion. The State Government in the Public Works
Department (Irrigation Branch) by a notification dated June 22, 1984 purported
to effect an amendment to r.6(b) of the Class I Rules with a view to nullify
the decision of this Court in A.S. Parmar's case. By a separate judgment in the
connected Writ Petitions Nos. 630-32/84 delivered today, we have struck down
the impugned notification as offending against Arts. 14 and 16(1) of the
Constitution and also as ultra vires the State Government by reason of the
proviso to s.82(6) of the Punjab Reorganisation Act, 1966. It appears that the
State Government has been treating a degree in Engineering referred to in Cl.(a)
r.6 as an essential qualification for promotion to the post of 615 Executive
Engineer in Class I service in the case of officers in Class II service
presumably on the view expressed by the Punjab & Haryana High Court in O.P.
Bhatia v. State of Haryana, ILR [1980] P & H 470. The controversy was
settled by the decision of this Court in A.S. Parmar's case and it overruled
the decision of the High Court in O.P. Bhatia's case and held on a
consideration of the relevant rules that the qualification of degree in
Engineering was not necessary in the case of officers in Class II service for
promotion to the post of Executive Engineer. That apart, we must deal with the
appeal on merits as the judgment of the High Court leaves much to be desired.
Issues raised in this appeal by special leave
are of far-reaching significance to the civil services. It involves a claim by
persons who had been in employment in the Government service on a purely ad-hoc
basis de hors the rules, that they were entitled upon their absorption to the
post on a regular basis, to the benefit of the period of their continuous
officiation as temporary employees on ad-hoc basis for determining their
eligibility for promotion to the higher grade or post. The questions presented
are whether the principles laid down in N.K. Chauhan & Ors. v. State of
Gujarat & Ors., [1977] 1 SCR 1037 and S.B. Patwardhan & Ors. v. State
of Maharashtra & Ors., [1977] 3 SCR 775 reiterated in Baleshwar Das &
Ors. v. State of Uttar Pradesh & Ors., [1981] 1 SCR 449 and subsequently
followed in several decisions, that ordinarily in the absence of any specific
rule of seniority governing the cadre or service, the length of continuous
officiation should be counted in reckoning seniority as between direct recruits
and promotees, should also be extended in determining seniority of such adhoc
employees vis-a-vis direct recruits, and whether the failure on the part of the
Government to count the entire period of officiation as such ad-hoc employees
would be per se arbitrary and irrational and thus violative of Arts. 14 and
16(1) of the Constitution inasmuch as the temporary service in the post in
question was not for a short period intended to meet some emergent or
unforeseen circumstances, but to meet the exigencies of the service. It is
asserted that the recent pronouncement of this Court in the case of Narendra
Chadha & Ors. v. Union of India & Ors., [1986] 2 SCC 157 supports this
view. The argument at first blush appears to be plausible but on deeper
consideration is not worthy of acceptance.
We proceed to give reasons there for.
We are not aware of any principle or rule
which lays down that the length of continuous officiation/service is the only
relevant criterion in determining seniority in a particular cadre or grade,
irrespective of any specific rule of seniority to the contrary. It is necessary
to 616 emphasise that the principles laid down in the two leading cases of N.K.
Chauhan and S.B. Patwardhan, reiterated in Baleshwar Das's case and
subsequently followed in several decisions are not an authority for any such
proposition.
These decisions particularly that in Baleswar
Das's case clearly lay down that ordinarily and in the absence of any specific
rule of seniority governing the cadre or service, the length of continuous
officiation should be counted in reckoning seniority as between direct recruits
and promotees. These authorities nowhere lay down that the same principle i.e.
the length of continuous officiation must be the sole guiding factor and the
only criterion in determining seniority of such ad-hoc employees vis-a-vis
direct recruits.
The contention on behalf of the appellants
firstly is that the High Court was dearly in error in holding that the entire
period of service of respondents Nos. 1 & 2 as Temporary Engineers on
ad-hoc basis i.e. the period from January 1971 and May 1969 to April 21, 1975
had to be counted not only for purposes of their seniority under r.8(2) of the
Class I Rules but also for the purpose of their eligibility for promotion to
the post of Executive Engineers under r.6(b). It is said that the High Court
failed to appreciate that respondents Nos. 1 & 2 were not recruited as
Temporary Engineers under the instructions contained in the Manual of
Administration issued under the Punjab Service of Engineers, Class II, Public
Works Department, (Irrigation Branch) Rules, 1941 or under the Punjab Service
of Engineers, Class II, Public Works Department (Irrigation Branch) Rules,
1970, but their appointment as Temporary Engineers was purely on an ad-hoc
basis de hors the rules and therefore they did not fail within the ambit of the
definition of the expression 'Class II Service' as defined in r. 2(5), as
amended in 1975. Secondly, the High Court failed to take into account the fact
that respondents Nos. 1 & 2 became members of Class II service only on
April 21, 1975 when they were recruited as Assistant Engineers on a regular
basis through the Public Service Commission. Till then they did not answer the
description of 'Temporary Engineers' as defined in r.2(5).
They did not even figure in the notification
dated May 18, 1982 issued by the State Government under r.3 constituting the
service of Engineers as Class II service w.e.f. December 25, 1970. It must
therefore logically follow that the service rendered by them as Temporary
Engineers on ad-hoc basis prior to their recruitment as Assistant Engineers in
1975 could not be treated to be service in that class within the meaning of
r.6(b) of the Class I Rules. Likewise, r.8(2) which speaks of any service
rendered as Temporary Engineer must be construed accordingly as meaning service
rendered by a Temporary 617 Engineer recruited in the manner provided by the
instructions contained in Manual of Administration issued under the 1941 Rules
or recruited as such under the 1970 Rules. Lastly, the decision in BaleShwar
Das's case does not lay down any proposition that persons employed on a purely
ad-hoc or fortuitous basis like respondents Nos. 1 & 2 are entitled as a
matter of law to the benefit of their period of ad-hoc service and the two
later decisions in G.P. Doval & Ors., v.
The Chief Secretary, Government of Uttar
Pradesh & Ors., [1985] 1 SCR 70 and Narendra Chadha are of little assistance.
These submissions, in our opinion, must prevail.
In reply, the main contention of learned
counsel for respondents Nos. 1 & 2 is that respondents Nos. 1 & 2 upon
their absorption to the post of Assistant Engineer on a regular basis on April
21, 1975 were entitled to the benefit of the entire period of officiation as
Temporary Engineers on an ad-hoc basis i.e. the period from January 1971 and
May 1969 to April 21, 1975 and the failure of the Government to count such
period of their ad-hoc service was per se arbitrary, irrational and thus
violative of Arts. 14 and 16(1) of the Constitution inasmuch as the service
rendered by them as Temporary Engineers (ad-hoc) was not for a short period
intended to meet some emergent or unforeseen circumstances, but to meet the
exigencies of the service and there is no reason why the principles laid down
in Baleshwar Das's case should also not be extended in determining the
seniority of such ad-hoc employees vis-a-vis direct recruits. Secondly, he
contends that exercise of the power of relaxation of the condition of eight
years' service for purposes of eligibility conferred on the State Government
under the proviso to r.6(b) is conditioned by the obligation to record reasons
in writing which requirement was mandatory. There was failure on the part of
the Government to record reasons therefor or to indicate any basis to show that
such relaxation was in public interest. Further, the words 'Class II Service'
in r.8(2) must bear the same meaning as the expression 'Class II Service' as
defined in r.2(5). The artificial definition of 'Class II Service' introduced
by amendment of r. 2(5) in 1975 was obviously to bring persons who were not
Assistant Engineers i.e. members of Class II service within the zone of
consideration for purposes of promotion to the post of Executive Engineer under
r.6(b) of Class I Rules. Furthermore, the State Government having relaxed the
condition of 8 years' service by recourse to the proviso to r.6(b), respondents
Nos. 1 & 2 were similarly situate as' the appellants and respondents
Nos,5-24 as they were all recruited together as Assistant Engineers in Class II
service in 1975 and they had all rendered about 31/2 years' service in that
class and therefore failure on the part of the State Government to consider the
case of. respondents Nos. 1 & 2 for 618 purposes of promotion to the post
of Executive Engineer was tantamount to the total exclusion of a class within a
class and was thus per se discriminatory. Lastly, the action of the State
Government in making ad-hoc promotion of the appellants and respondents
Nos..5-24 was wholly mala fide.
Learned counsel wanted us to draw an
inference of mala fide from the fact that the Private Secretary to Chief
Minister was present at a meeting held in the room of the Irrigation Minister
where the list of promotion was settled. It is suggested that initially the
names of respondents Nos. 1 & 2 figured in the list but later on wholly
extraneous considerations their names were deleted.
It would be convenient at this stage to refer
to the relevant provisions of the Punjab Service of Engineers Class I, P.W.D.
(Irrigation Branch) Rules, 1964, as amended in 1975. The amendment effected in
1975 substituted a new r.2(5) for the existing r.2(5) and it defines the
expression 'Class II Service' as follows:
"2(5). 'Class II Service' shall, for the
purpose of promotion to the service, comprises of members of the Haryana
Service of Engineers, Class II (Irrigation Branch); Temporary Engineers,
Officiating Sub-Divisional Officers and Officiating Assistant Design Engineers,
except those promoted in excess of the quota fixed under rule 6 of the Haryana
Service of Engineers, Class II, Public Works Department (Irrigation Branch)
Rules, 1970." The qualifications of persons eligible for appointment are
prescribed in r.6 which is in these terms:
"6. Qualifications: No person shall be
appointed to the service unless he-(a) Possesses one of the University Degrees
or other qualifications prescribed in Appendix B of these Rules;
Provided that Government may waive this
qualification in the case of a particular officer belonging to Class II
Service;
(b) In case of an appointment by promotion
from Class II Service, has completed in that class of service for a period of
ten years from the commencement of these rules, six years service and after
that period eight years service;
619 Provided that if it appears to be
necessary to promote an officer in the public interest, the Government may, for
reasons to be recorded in writing either generally or in any individual case
reduce the period of six or eight years to such extent as it may deem proper in
consultation with the Finance Department.
Explanation: For the purpose of this clause
in computing of the period of six or eight years any service rendered as a
Temporary Engineer shall be taken into account".
We may next set out r.8 which deals with the
method of promotion:
"8. Appointment by promotion: (1) A
Committee consisting of the Chairman of the Public Service Commission and where
the Chairman is unable to attend any other member of the Commission
representing it, the Secretary, P.W.D. (Irrigation Branch) and the Chief
Engineer, Punjab, P.W.D. Irrigation Branch shall be constituted.
(2). The Government shall prepare a list of
eligible and suitable persons for promotions in order of their seniority in
Class II Service which shall be reckoned:
(a) in the case of a member of the Haryana
Service of Engineers, Class 11 (Irrigation Branch) from the date of his
continuous officiation as Sub-Divisional Officer or Assistant Design Engineer
or appointment as Temporary Engineer, as the case may be:
(b) in the case of a Temporary Engineer from
the date of his appointment as such." As a matter of construction, the
words 'Class II service' in r.8(2) introduced by amendment in 1975 must be
construed to have the same meaning as the expression 'Class II service' as
defined in r.2(5). We find the language employed by the framers of the rules in
the definition clause in r.2(5) has been departed from in the definition of the
expression 'Class II service' and it is generally but not always a fair
presumption that the alteration in the language used in the new definition in
r.2(5) was intentional. Prior to the amendment in 1975, the expression, 'Class
II Service' as defined in r.2(5) meant the members of Class II service
including Temporary Engineers. As the State stood 620 in need of many more
Executive Engineers it became essential to take steps 3 recruit not only
persons who strictly belong to Class II Service proper but also to bring within
the zone of consideration others who are not members of Clause II Service e.g.
Offg. Sub-Divisional Officers and Offg. Assistant Design Engineers who would
not be so included. The key to the interpretation of the definition clause in
r.2(5) is the words "for the purpose of promotion". The effect of the
enlarged definition of Class II Service in r.2(5) is that these words when
found in the Act must, for the purpose of promotion, be understood in that
context in a certain sense i.e. to include not only members of Class II Service
including Temporary Engineers but also Offg. Sub-Division Officers and Offg.
Assistant Design Engineers who, but for the interpretation clause, would not be
so included. That would be in consonance with the purpose and object of the
amendment.
There is reason why 'the words 'Class II
Service' in r.8(2) introduced in 1975 must bear the same meaning as the expression
'Class II Service' as defined in r.2(5) as both the provisions deal with the
same subject i.e. promotion of members of Class II Service to the post of
Executive Engineer in Class I Service. The mode of promotion to the post of
Executive Engineer is as laid down in r.8(2). Now, r.8(1) remains unaltered.
R.8(1) directs that a committee consisting of the Chairman of the Public
Service Commission or where the Chairman is unable to attend any other member
of the Commission representing it, Secretary to the. Government, P.W.D.
(Irrigation Branch), and the Chief Engineer, Punjab, Irrigation Branch shall be
constituted. Under r.8(2) introduced in 1975, the Government has to prepare a
list of eligible and suitable persons for promotion in order of their seniority
in Class II Service which shall be reckoned (a) in the case of a member of the
Haryana Service of Engineers, Class II, Irrigation Branch, from the date of his
continuous officiation as Sub-Divisional Officer or Assistant Design Engineer
or appointment as Temporary Engineer, as the case may be. (b) In the case of a
Temporary Engineer from the date of his appointment as such. These provisions
can lead to no other conclusion but that the list of eligible and suitable
persons for promotion has to be drawn not only comprising of regular members of
Class II SerVice including Temporary Engineers in order of their seniority but
also of Offg. Sub-Divisional Officers or Offg. Assistant Design Engineers in
that class of service from the date specified therein. Apparently, the
requirements of rr.8(1) and 8(2) have not been complied with. All that exists
is the combined seniority list of Assistant Engineers belonging to Class II
Service in order of their seniority prepared by the Public Service Commission
which incidentally has never been challenged.
621 The meaning of the word 'as' in the
collocation of the words 'any service rendered as a Temporary Engineer' in
Explanation to r.6(b) of the Class I Rules must obviously mean 'in the capacity
of'. In Dr. Asim Kumar Bose v. Union of India & Ors., [1983] 1 SCC 345 the
question was whether the appellant who was a Radiologist in the Maulana Azad
Medical CoLlege which was a post belonging to Specialist Grade II could be
appointed to the post of Professor of Radio-Therapy in that College by direct
recruitment under r.8(2) of the Central Health Service (Amendment) Rules, 1966.
In 1971 there were certain amendments in the Rules prescribing the mode in
which the posts of Professor and Associate Professor could be filled in and
paragraphs 2(b) and 3 of Annexure I to the Second Schedule and sub-r.(2a) to
r.8 were inserted which brought about a change. These amendments brought about
a change inasmuch as they provided for a vertical channel of promotion to the
teaching post upto the post of Associate Professor. At p.363 of the Report this
Court referred to the report of the Third Pay Commission where it was observed
at p. 173.
"While the Specialists on the teaching
side can hold posts of hospital specialists, the latter cannot be promoted to
teaching posts because of lack of teaching experience." Presumably, the
Ministry of Health on that view held that the word 'as' in paragraphs 2(b) and
3 of Annexure I to the Second Schedule and sub-r. (2a) of r.8 makes holding of
a post in the cadre a condition precedent to the post of a Professor or an
Associate Professor. In that context, it was observed:
Normally, a Professor or an Additional Professor
in a medical college or a teaching institution can be appointed by direct
recruitment from amongst persons holding the post of Associate Professor or
Assistant Professor in the concerned speciality in a medical college or a
teaching institution having at least six years' teaching experience out of 12
years;
standing in the Grade through the Union
Public Service Commission. An Associate Professor in the medical coLlege or a
teaching institution can only be promoted from amongst persons holding the post
of Reader or Assistant Professor having at least five years' teaching
experience in' the concerned speciality by the Departmental Promotion
Committee.
We are inclined to the view that the word
"as" in the collocation of the words used "at least six years'
experience as Associate Professor/Assistant Profes622 sor/Reader" in
paragraph 2(b) and of the words "at least five years' experience as
Reader/Assistant Professor" in paragraph 3 and sub-rule (2-A) of Rule 8
must be interpreted in its ordinary sense as meaning teaching experience gained
"in the capacity of". In Black's Law Dictionary, 5th Edn., p. 104,
the meaning of the word "as" as given is: "Used as an adverb,
etc., means like, similar to, of the same kind, in the same manner, in the
manner in which." In Shorter Oxford Dictionary, 3rd Edn., p. 111, the word
"as" is stated to mean: "The same as, in the character,
capacity, role of".
In spite of all this, the contention of
respondents Nos. 1 & 2 that they were entitled to the benefit of the period
of service rendered by them as Temporary Engineer on an ad-hoc basis w.e.f.
January 2, 1971 and May 19, 1969 respectively prior to their appointment as
Assistant Engineers on regular basis on April 21, 1975 for purposes of
reckoning their eligibility under r.6(b) read with the Explanation thereto of
the Class I Rules as also for purposes of their seniority in the cadre of
Assistant Engineers, cannot prevail. They were not recruited under paragraphs 8.312
to 8.316 of the Manual of Administration, Public Works Department. In the
erstwhile State of Punjab there was a distinct class of Engineers designated as
Temporary Engineers. All persons appointed as Temporary Engineers had to face
the Public Service Commission for selection to the post under rr.4 and 5 of the
Punjab Service of Engineers, Class II. P.W.D (Irrigation Branch) Rules, 1941.
Under the Rules the term 'Temporary Engineer' was defined in r.2(f) to mean an
engineer in the service of the Public Works Department, Punjab whose
appointment was temporary within the meaning of the Fundamental Rules, was
pensionable and who was not a member of any regular service. The word 'service'
as defined in r.2(g) of the Rules meant the Punjab Service of Engineers, Class
II, Irrigation Branch. R.5 provided that no Temporaty Engineer could be taken
into service or member of the Overseers Engineering Service, Punjab promoted
unless he had been declared by the Commission on the report of the Chief
Engineer to be fit for the service, was serving the Department and held an
appointment for not less than two years continuously before the date of entry
into the service.
Next came the Punjab Service of Engineers,
Class II, P.W.D. (Irrigation Branch) Rules, 1970. The expression 'member of
service' was defined in r.2(12) to mean an officer appointed substantively to a
cadre post. The definitions of the word 'service' and of the term 623
'Temporary Engineer' in r.2(15) and (16) remained the same except for the
difference that the word 'temporary' carried the meaning as given in the Civil
Service Regulations in place of the Fundamental Rules. R.6 provided for the
manner of recruitment of Temporary Engineers from different sources, in the
proportions and the order indicated. Subr.(3) thereof provided that in case a
candidate was not available from sources 1 and 3 i.e. by direct recruitment or
by promotion, and a person had to be appointed-in public interest, as a
stop-gap arrangement, the period of service rendered by such person shall not
be reckoned for the purpose of seniority. Sub-r. (4) provided that the
Government could fill a short term vacancy in the exigencies of public service,
after recording specific reasons, for the period not exceeding six months from
the Overseers Engineering Service, Irrigation Branch. It is quite apparent
under these rules that appointment of respondents Nos. 1 & 2 as Temporary
Engineers on an ad-hoc basis was de hors the rules.
It may seem to be some illogical that though
respondents Nos. 1 & 2 were appointed as Temporary Engineers on an adhoc
basis, they should be deprived of the period of their officiation as such till
they were absorbed to the post of Assistant Engineer on a regular basis through
the Public Service Commission on April 21, 1975. That is a legal consequence
which cannot be avoided on well-settled principles.
In their case the length of continuous
officiation cannot be the basis for reckoning their seniority since they never
became members of Class II Service prior to their absorption. On the terms of
appointment of respondents Nos. 1 & 2, it was specifically provided that
their appointment was purely on an ad-hoc basis for a period of six months from
the date of their joining the post on a fixed salary of Rs.400+ allowances and
that their services were liable to be terminated without notice. It was also
specifically mentioned that the appointment as such Temporary Engineers on
ad-hoc basis would not count towards seniority or increment in their salary. It
was further stated that the posts of Temporary Engineers in Class II Service
would be advertised in due course by the Public Service Commission and that if
they were not selected by the Commission, their services would be terminated
without notice They are also intimated that their inter-se seniority among the
Temporary Engineers so recruited would be in the order of merit in the list of
candidates as settled by the Commission. It is common ground that respondents
Nos. 1 & 2 were not recruited through the Public Service Commission. It was
not till July 8, 1973 that the Secretary to the Commission conveyed to the
State Government the approval of the Commission to the ad-hoc appointment of
251 624 Temporary Engineers beyond the period of six months till regular
appointments were made in the posts of Assistant Engineers through the
Commission. These are the facts on which there is no doubt or difficulty as to
the principles applicable.
According to the accepted canons of service
jurisprudence, seniority of a person appointed must be reckoned from the date
he becomes a member of the service. The date from which seniority is to be
reckoned may be laid down by rules or instructions (a) on the basis of the date
of appointment (b) on the basis of confirmation (c) on the basis of regulation
of service (d) on the basis of length of service, or (e) on any other
reasonable basis. It is well-settled that an ad-hoc or fortuitous appointment
on a temporary or stopgap basis cannot be taken into account for the purpose of
seniority even if the appointee was qualified to hold the post on a regular
basis, as such temporary tenure hardly counts for seniority in any system of
service jurisprudence.
In somewhat similar circumstances, in the
case of State of Gujarat v. C.G. Desai & Ors., [1974] 2 SCR 255 the
question for consideration was whether in the case of Deputy Engineers directly
recruited through the Public Service Commission by competitive examination, the
service, if any, rendered by them as officiating Deputy Engineers prior to
their appointment to Class II Service i.e. during the pre-selection period,
could be taken into account for purposes of their eligibility for promotion as
Executive Engineers under r.7(2) of the Bombay Engineering Service Rules, 1960
which provided for a period of 7 years' experience in Class II Service. The
Government's stand was that the service rendered by the direct recruits prior
to their appointment to the Class II Service could not be taken into account in
computing their eligibility of 7 years' experience in that class of service and
the Court upheld the stand. It was contended on behalf of the promotees that if
for promotion to the post of Executive 'Engineer in Class I Service the period
of eligibility of 7 years' experience in Class II Service was to start from the
date of absorption in that class of service, then, for most of them there would
be rare chance of ever getting promotion as officiating Executive Engineers and
as many of them had less than 7 years to go before attaining the age of
superannuation. The contention was that r.7(2) of the Rules did not permit
discrimination between the promotees and direct recruits in the matter of
computing 7 years' service for further promotion as officiating Executive
Engineers. The contention was repelled on the ground that direct recruits and
promotees in Class II Service constituted two distinct groups or classes and
the classification was based on intelligible differentia, and it was observed:
625 "If a person, like any of the respondents,
to avoid the long tortuous wait leaves his position in the 'never-ending' queue
of Temporary/Officiating Deputy Engineers etc.
looking for promotion, and takes a short cut
through the direct channel, to Class II Service, he gives up once for all, the
advantages and disadvantages that go with the channel of promotion and accepts
all the handicaps and benefits which attach to the group of direct recruits. He
cannot, after his direct recruitment claim the benefit of his preselection
service and thus have the best of both the worlds. It is well-settled that so
long as the classification is reasonable and the persons falling in the same
class are treated alike, there can be no question of violation of the
constitutional guarantee of equal treatment." In taking that view, the
Court avoided a doctrinaire approach and approached the problem from a
pragmatic view. It was said:
"If the claim of the respondents to the
counting of their pre-selection service is conceded, it will create serious complications
in running the administration; it will result in inequality of treatment rather
than in removing it. If the pre-selection service as Officiating Deputy
Engineers of direct recruits having such service, is taken into account for the
purpose of promotion, it would create two classes amongst the same group and
result in discrimination against those direct recruits who had no such
pre-selection service to their credit." It would be repugnant to all
accepted concepts of service jurisprudence if the claim of persons like
respondents Nos. 1 & 2 who were employed as Temporary Engineers on adhoc
basis de hors the rules for six months at a time were extended the benefit of
their continuous officiation as such ad-hoc employees in reckoning their seniority
vis-a-vis direct recruits in considering their eligibility under r.6(b) of the
Class I Rules for promotion to a higher grade or post of Executive Engineer. In
A.P.M. May akutty etc. v.
Secretary, Public Service Department, [1977]
2 SCR 937 the question was whether the period of service rendered by such
ad-hoc employees appointed under r. 10(a) (i)(1) of the Madras State &
Subordinate Services Rules purely on an adhoc basis and as matter of stop-gap
arrangement, were entitled to count for the purpose of seniority, their period
of service on ad-hoc basis during which they served in a stopgap arrangement.
It was held 626 that such service could not be taken into account for the
purpose of seniority from the date of their initial appointment. The Court
speaking through Chandrachud, CJ. after referring to the provision contained in
r. 10(a)(i)(1) of the Rules, stated:
"This provision contemplates the making
of temporary appointments when it is necessary in the public interest to do so*
to an emergency *owing which has arisen for filling a vacancy immediately. Such
appointments, in terms, are permitted to made otherwise than in accordance with
the rules. The letters of appointment issued to the appellants mention
expressly that they were appointed under rule 10(a)(i)(1), that the
appointments were "purely temporary necessitated on account of the
non-availability of regularly selected candidates conferring no claim for
future appointment as Junior Engineers .... and that the appointment is liable
to be terminated at any time without previous notice." In face of the
provisions of the rule and the terms of the appointment it seems to us clear
that the appellants were appointed purely as a matter of stop-gap or emergency
arrangement.
Since such service cannot be taken into account
for purposes of seniority, the appellants cannot contend that the entire
service rendered by them from the date of their initial appointment must count
for purposes of seniority." The Court distinguished the case of C.P.
Damodaran Nayar v.
State of Kerala & Ors., [1974] 2 SCR 867
on the ground that the temporary service rendered by a District Munsiff recruited
in a regular manner through the Public Service Commission could not, by any
stretch of imagination, be considered to be purely as a matter of fortuitous or
stopgap arrangement. The distinguishing features in Mayakutty's case, in the
words of Chandrachud, CJ. were:
"The distinguishing feature of that
case, which is highlighted in the judgment of the Court, is that the appellant
therein was "appointed in a regular manner through the Public Service
Commission" and therefore his appointment could not "by any stretch
of imagination" be described as having been made to fill a purely stop-gap
or fortuitous vacuum. In our case the initial appointment was not only made
without any reference to the Public Service Commission but the various rules
and the terms of the appellants' 627 appointment to which we have drawn
attention show that the appellants were appointed purely as a matter of
fortuitous or stop-gap arrangement. The concurrence of the Public Service
Commission to the continuance of the appellants in the posts filled by them
first after the expiry of three months and then after the expiry of one year,
was obtained not with a view to regularising the appointments since their
inception but for the purpose of meeting the requirements of a provision under
which such concurrence is necessary to obtain if an appointment made without
selection by the Public Service Commission is required for any reason to be
continued beyond three months or a year." That precisely is the case here.
It must therefore be held that the period of service rendered by persons like
respondents Nos. 1 & 2 who were appointed on ad-hoc basis purely as a
stop-gap arrangement for six months at a time de hors the rules, cannot be
considered for purposes of their seniority in Class II Service or in reckoning
their eligibility of 8 years' service in that class of service under r.6(b) of
Class I Rules.
We feel it necessary to emphasise that the
principles laid down by this Court in the two cases of N.K. Chauhan and S.B.
Patwardhan which were reiterated in Baleshwar Das's case and subsequently
followed in several other cases do not lay down any principle to the contrary.
These cases are not an authority for the proposition relied upon. On the contrary,
they clearly proceed on the principle that persons appointed on an ad-hoc basis
or for fortuitous reasons or by stop-gap arrangement, constitute a class which
is separate and distinct from those who are appointed to posts in the service
in strict conformity with the rules of recruitment.
In the case of S.B. Patwardhan, Chandrachud,
CJ. observed:
"We however hope that the Government
will bear in mind the basic principle that if a cadre consists of both
permanent and temporary employees, the accident of confirmation cannot be an
intelligible criterion for determining seniority as between direct recruits and
promotees. All other factors being equal, continuous officiation in a
non-fortuitous vacancy ought to receive due recognition in determining rules of
seniority as between persons recruited from different sources, so long as they
belong to the same cadre, 628 discharge similar functions and bear similar
responsibilities." In Baleshwar Das's case, Krishna lyer, J. affirmed the
principle in his own charismatic and picturesque language:
"We must emphasise that while temporary
and permanent posts have great relevancy in regard to the career of government
servants, keeping posts temporary for long, sometimes by annual renewals for
several years, and denying the claims of the incumbents on the score that their
posts are temporary makes no sense and strikes us as arbitrary, especially when
both temporary and permanent appointees are functionally identified. If, in the
normal course, a post is temporary in the real sense and the appointee knows
that his tenure cannot exceed the post in longevity, there cannot be anything
unfair or capricious in clothing him with no fights. Not so, if the post is,
for certain departmental or like purposes, declared temporary, but it is within
the ken of both the government and the appointee that the temporary posts are
virtually long-lived. It is irrational to reject the claim of the 'temporary'
appointee on the nominal score of the terminology of the post. We must also
express emphatically that the principle which has received the sanction of this
Court's pronouncements is that officiating service in a post is for all practical
purposes of seniority as good as service on a regular basis.
It may be permissible, within limits, for
government to ignore officiating service and count only regular service when
claims of seniority come before it, provided the rules in that regard are clear
and categories and do not admit of any ambiguity and cruelly arbitrary cut-off
of long years of service does not take place or there is functionally and
qualitatively, substantial difference in the service rendered in the two types
of posts.
While rules regulating conditions of service
are within the executive power of the State or its legislative power under
proviso to Article 309, even so, such rules have to be reasonable, fair and not
grossly unjust if they are to survive the test of Articles 14 and 16." We
must also refer to the decision in A. Janardana v. Union of India & Ors.,
[1983] 3 SCC 60 1 where Desai, J. had occasion to observe:
629 "In other words after having
rendered service in a post included in the service, he is hanging outside the
service, without finding a berth in service, whereas direct recruits of 1976
have found their place and berth in the service. This is the situation that
stares into one's face while interpreting the quotarota rule and its. impact on
the service of an individual. But avoiding any humanitarian approach to the
problem, we shall strictly go by the relevant Rules and precedents and the
impact of the Rules on the members of the service and determine whether the
impugned seniority list is valid or not. But, having done that we do propose to
examine and expose an extremely undesirable, unjust and inequitable situation
emerging in service jurisprudence from the precedents namely, that a person
already rendering service as a promotee has to go down below a person who comes
into service decades after the promotee enters the service and who may be a
schoolian, if not in embryo, when the promotee on being promoted on account of
the exigencies of service as required by the Government started rendering service.
A time has come to recast service jurisprudence on more just and equitable
foundation by examining all precedents on the subject to retrieve this
situation." To the same effect are the decisions in O.P. Singla v. Union
of India, [1984] 4 SCC 450; G,S. Larnba v. Union of India, [1985] 2 SCC 604;
P.S. Mahal v. Union of India, [1984] 4 SCC 545 and Pran Krishna Goswami &
Ors. v. State of West Bengal & Ors., [1985] Suppl. SCC 221. It must now be
taken as well-established after these decisions that in the absence of any
other valid principle of seniority, the inter-se seniority between direct
recruits and promotees should as far as possible be determined by the length of
continuous service whether temporary or permanent in a particular grade or post
(this should exclude periods for which an appointment is held in a purely
stop-gap or fortuitous arrangement). No doubt, there are certain observations
in the two cases of G.P. Doral and Narender Chadha which seem to run counter to
the view we have taken, but these decisions turned on their own peculiar facts
and are therefore clearly distinguishable and they do not lay down any rule of
universal application.
For all these reasons, the appeal succeeds
and is allowed. The judgment and order of the High Court quashing the impugned
notification of the State Government dated December 20, 1978 making 630 ad-hoc
promotions of the appellants and respondents Nos. 524 are set aside. Instead,
we direct that the impugned order of the State Government making ad-hoc promotions
of 62 Assistant Engineers including the appellants and respondents Nos. 5-24 as
officiating Executive Engineers will stand and they shall continue to function
as such, subject to the terms and conditions contained in the aforesaid order
till the process of making appointments by promotion to these posts is
completed. We hope and trust that the State Government will strike a just
balance between the competing claims of these 62 Assistant Engineers promoted
as Executive Engineers on ad-hoc basis, and persons like respondents Nos. 1
& 2 appointed as Temporary Engineers on an ad-hoc basis who could at the
most claim that they should be given the benefit of the period of service from
April 21, 1975 when they were recruited as Assistant Engineers through the
Public Service Commission, provided they satisfy the test of eligibility of 8
years' experience in that class of service, while considering the cases of all
eligible members of Class II Service for promotion to the post of Executive
Engineer in Class I Service in accordance with law and will complete the
process of appointment within six months from today.
There shall be no order as to costs.
S.R. Appeal allowed.
Back
