State of Rajasthan
& Ors. Vs. Jagdish Narain Chaturvedi  INSC 1011 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APEAL NO. 3620 OF 2009 (Arising out
of SLP (C ) No. 2848 of 2006) State of Rajasthan and Ors. ...Appellants Versus
Jagdish Narain Chaturvedi ....Respondent WITH Civil Appeal No. 3621/2009 @ SLP
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Dr. ARIJIT PASAYAT, J
these cases the State of Rajasthan had questioned correctness of the judgment
rendered by different benches of the Rajasthan High Court allowing the Writ
Petitions filed by the respondent in each case. The basic issue was whether ad
hoc appointment or appointments on daily wage or work charge basis are
appointments made to the cadre/service in accordance with the provisions
contained in the recruitment rules contemplated by the Government Orders dated
25.1.1992 dated 17.2.1998. It is the stand of the appellants that they are not,
while the respondents contend to the contrary. The cases at hand relate to the
appointments made under the Rajasthan Subordinate Offices Ministerial Staff
Rules, 1957 (in short the `Ministerial Staff Rules'), the Rajasthan Engineering
Subordinate Service (Irrigation Branch) Rules, 1967 (in short the `Irrigation
Branch Rules'), the Work Charged Employees Services Rules, 1964 (in short Work
Charged Rules), the Rajasthan Agricultural Subordinate Service Rules, 1978 (in
short the `Subordinate Rules'), the Rajasthan Forest Subordinate Service Rules,
1963 (in short the `Forest Subordinate Rules'), Rajasthan Panchayat Samiti and
Zila Parishad Service Rules, 1959 (in short the `Panchayat Service Rules') and
the Rajasthan Secretariat Ministerial Service Rules, 1970 (in short the
`Ministerial Service Rules') .
of the appellants essentially is that the stagnation benefits are given from
the date of regularization. It is submitted that this question has been decided
in State of Haryana v. Haryana Veterinary & AHTS Association and Anr. (2000
(8) SCC 4). It is the stand of the State that the stagnation benefits are given
since chance of promotion is not there. There is no question of any regularization
if the proficiency test is not passed. Circulars relied upon by the employees
refer to regular service.
the Notification dated 29.3.1995 paras 3, 4 and 5 are of relevance.
3 refers to regular service while para 4 states about 10% of benefit to 10% to
all the eligible employees and para 5 is the most crucial as it relates to the
benefit being given after regular appointment. Initially, the period fixed was
15 years, later it was made to three different periods of 9 years, 18 years and
27 years. Subsequent Notification is dated 25.1.1992 which talks of promotion.
Obviously, the promotion has to be from the existing cadre in service.
of the appellants is that the appointments can be relatable to the existing
cadre/service and in case of ad hoc and work charge service there is no
reference to any cadre. The recruitment rules specifically refer to existing
cadre/service. This position is clarified by a Notification dated 3.4.1993. The
crucial paragraph is para 3 which speaks of action being taken in accordance
with the recruitment rules. By a Notification of 17.2.1998, all previous orders
of the appellants in essence is that the High Court confused regular
appointment made to the cadre/service with appointment to the post. It is also
submitted that if there was no regularization there was no scope for any
promotion. With reference to Rule 25(4) it is submitted that the same relates
to prospective employment as is evident from the expression "occurrence of
vacancy". Starting point therefore is when the employee is born in the
cadre/service. Ad hoc employees had no right to the post.
is submitted that though reference was made to 1992 circular the same was
misread. Since it was a wrong decision there is no question of any negative
counsel for the respondent in each case on the other hand submitted that
similar issues were decided earlier and the special leave petitions had been
dismissed. Further, in the case of LDCs also, the State did not question the
correctness of the decision.
few provisions of the Rajasthan Absorption of Surplus Personnel Rules, 1969 (in
short the `Rules') need to be noted.
3(a) refers to ad hoc appointment and reads as follows:
"Ad hoc appointment
means temporary appointment made without selection of the candidate by any of
the methods of recruitment provided under the relevant service rules, or any
orders of Government where no service rules exist and otherwise than on the
recommendation of the Commission if the post is in its purview."
needs to be noted that there is no scope for raising an issue that executive
instructions can override the rules. The law is to the contrary. The
Notification dated 3.4.1993 speaks of "in accordance with recruitment
necessary because of doubts regarding regular appointment.
It is made clear that
the period rendered in the existing cadre before regular employment in
accordance with the relevant recruitment rules to the post is because of change
of cadre the previous period is not counted so there is no question of giving
the benefit to ad hoc employees and the appointment letters which were
illustratively filed indicate that the appointments were till regular
appointment was made. Ad hoc appointment is not made in terms of the
requirements of the rules. The benefit is extended to avoid stagnation. In case
of ad hoc employees, stagnation is till the regularization is made. The stress
in the present case is on regular appointment to cadre/service. As rightly
contended by learned counsel for the State, the High Court confused itself with
appointment to post. The question of promotion arises only when appointment is
a regular appointment. Appointment to the post is not relevant; on the other
hand, what is relevant is the period relatable to the cadre of the service.
25(4) relates to prospective appointment as is clear from the expression
`occurrence'. Therefore, the starting point has to be as noted above, when the
employee is born in the cadre, as observed by this Court in Dr. Chanchal Goyal
(Mrs.) v. State of Rajasthan (2003 (3) SCC 485), Santosh Kumar and Ors. v. G.
R. Chawla and others (2003 (10) SCC 513) and A.G. Sainath Reddy v. Govt. of
A.P. & Ors. (2003 (4) SCC 625). Ad hoc employee has no right to the post
and ad hoc appointment does not count for the purpose of seniority.
High Court has referred to the cases of the LDCs. It is clear on reading of the
decision of the High Court that though the same was decided on the factual
background of 1992 circular it mis-construed the same. Wrong decision does not
create a right. There is no question of negative equality. (See Indian Council
of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. (1997 (6) SCC
766), Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. (1996
(2) SCC 459) and Chandigarh Administration and Anr. V. Jagjit Singh and Anr.
(1995 (1) SCC 745). Methods of recruitment are in Rule 5. The standard
procedure is contained in Rules 16 and 17. Rule 22 refers to the recommendation
and Rule 23 relates to the appointment to the service. Rule 23 speaks of deemed
regularization and after 7.11.1975 procedure has to be followed. Sub-Rule (9)
is of considerable importance. It speaks of appointment on regular basis on
availability of vacancy, the requirement to pass a performance test and the
number of chances given for such post. Rule 27 speaks of appointment to the
service. Rule 28 speaks of urgent temporary appointment when no post be filled
up by direct recruitment or by promotion immediately. There is no conceptual
difference between the two. The High Court has equated them. The Haryana
Veterinary case (supra) has been distinguished by the High Court saying that
the appointment in this case was not de hors by relying of Rule 28. The
decision is fundamentally wrong because the conceptual difference between Rule
23 and Rule 28 has been lost sight of. In paras 7, 9, 10, 11 and 12 of the
Haryana case it has been observed as follows:
"7. Coming to
the circular dated 2-6-1989, issued by the Financial Commissioner and Secretary
to the Government of Haryana, Finance Department, it appears that the aforesaid
circular had been issued for removal of anomalies in the pay scale of Doctors,
Deputy Superintendents and Engineers, and so far as Engineers are concerned,
which are in Class I and Class II, it was unequivocally indicated that the
revised pay scale of Rs 3000 to Rs 4500 can be given after completion of 5
years of regular service and Rs 4100 to Rs 5300 after completion of 12 years of
regular service. The said Financial Commissioner had issued yet another
circular dated 16-5-1990, in view of certain demands made by officers of
different departments. The aforesaid circular was issued after reconsideration
by the Government modifying to some extent the earlier circular of 2-6-1989,
and even in this circular it was categorically indicated that so far as
Engineers are concerned, they would get Rs 3000 to 4500 after 5 years of
regular and satisfactory service and selection grade in the scale of pay of Rs
4100 to Rs 5300, which is limited to the extent of 20% of the cadre post should
be given after 12 years of regular and satisfactory service. The aforesaid two
circulars are unambiguous and unequivocally indicate that a government servant
would be entitled to the higher scale indicated therein only on completion of 5
years or 12 years of regular service and further the number of persons to be
entitled to get the selection grade is limited to 20% of the cadre post. This
being the position, we fail to understand how services rendered by Rakesh Kumar
from 1980 to 1982, which was purely on ad hoc basis, and was not in accordance
with the statutory rules can be taken into account for computation of the
period of 12 years indicated in the circular. The majority judgment of the High
Court committed serious error by equating expression "regular
service" with "continuous service". In our considered opinion
under the terms and conditions of the circulars dated 2-6-1989 and 16-5-1990,
the respondent Rakesh Kumar would be entitled for being considered to have the
selection grade on completion of 12 years from 29-1-1982 on which date he was
duly appointed against a temporary post of Assistant Engineer on being selected
by the Public Service Commission and not from any earlier point of time. The
conclusion of the majority judgment in favour of Rakesh Kumar, therefore,
cannot be sustained.
xxx xxx xxx
9. Under the
Recruitment Rules which had been made in exercise of powers conferred by the
proviso to Article 309 of the Constitution "member of service" means
an officer appointed substantively to a cadre post and includes in case of a
direct appointment an officer on probation or an officer who having
successfully completed his probation awaits appointment to a cadre post. In
case of an appointment by transfer an officer who is on probation or who having
successfully completed the probation awaits appointment to a cadre post.
10. Under Rule 6 of
the Recruitment Rules, recruitment to the service in the cadre post could be
made both by way of direct appointment as well as by promotion in the
proportion from different sources mentioned in the said Rule. Sub-rule (3) of
Rule 6 authorises appointment to a cadre post as stopgap 15 arrangement from
sources other than the allotted source when a candidate from the allotted
source is not available from sources 1 and 3, but such appointee is liable to
be reverted to his original cadre when a candidate from the allotted source is
available and the period of service rendered by such person shall not be
reckoned for the purpose of his seniority.
11. Sub-rule (4) of
the Rule thus enables the State Government to fill up a short-term vacancy in
the exigencies of public service after recording reasons for a period not
exceeding six months in each case, without resorting to the select list
prepared under Rule 9.
12. Under Rule 8
appointment to the service has to be made by way of direct recruitment strictly
in the order of merit indicated by the Public Service Commission depending upon
the number of vacancies available in the cadre."
that case also, sub-Rule 3 of Rule 6 and sub-rule (4) of Rule 6 are of
relevance. The High Court was clearly wrong in saying that the appointment was
made de hors the Rules. In Ram Ganesh Tripathi and Ors. V. State of U.P. and
Ors. (1997 (1) SCC 621 at para 7) it was stated as follows:
"7. Rule 21-A
provides for regularisation of service of ad hoc employees by treating them as
persons appointed in the service on the date of their regularisation. Rule 9
provides that a person appointed under that rule shall be entitled to seniority
only from the date of appointment after selection in accordance with the said
Rules and shall, in all cases, be placed below the employees appointed in
accordance with the procedure for direct recruitment prior to the appointment
of such persons under those Rules. In view of these statutory Rules, the 16
Government could not have treated the respondents and other ad hoc employees
whose services were regularised on 17-5-1985 as persons regularly appointed
from an earlier date. Nor could the Government have counted seniority from an
earlier date either for promotion to the higher post or for the purpose of
giving selection grade."
is another hurdle on the way of the writ petitioners. When the order of
regularization was passed, according to learned counsel for the writ
petitioners-respondents the initial appointment was a substantive appointment.
If that was the
position, there was need to take the proficiency test which undisputedly all
the respondents have taken. If initially the appointment was a substantive
appointment, the respondents-writ petitioners could have challenged when the
order of regularization was passed. There was no challenge to the order of
regularization and benefits therefrom and there was no challenge to the order
of regularization in any of the cases. If the plea of the respondents-writ
petitioners is accepted it would mean that in their cases the regularization
was done long back. There was no challenge at the relevant point of time.
Therefore, the belated approach only for the sake of getting advantage of ad
hoc or work charge service cannot be countenanced. The present stand that the
initial appointment was substantive appointment is contrary to the factual
position because in each case the proficiency test was undertaken and the
appointment letter shows that the appointment was till selected candidates
even if the proficiency test is passed the question of eligibility is of
relevance, "when the vacancy occurs". So far as daily wage services
are concerned there is no scale of pay and the lowest figure scale of pay has
to be given. According to fundamental Rule 9(4), `cadre' means the strength of
a service or part of service sanctioned as a separate unit. (See Chakradhar
Paswan v. State of Bihar (1988 (2) SCC 214).
order to become "a member of service" candidate must satisfy four
conditions, namely (i) the appointment must be in a substantive capacity; (ii)
to a post in the service i.e. in a substantive vacancy; (iii) made according to
rules; (iv) within the quota prescribed for the source.
hoc appointment is always to a post but not to the cadre/service and is also
not made in accordance with the provisions contained in the recruitment rules
for regular appointment.
the adjective `regular' was not used before the words `appointment in the
existing cadre/service' in para 3 of the G.O. dated 25.1.1992 which provided
for selection pay scale the appointment mentioned there is obviously a need for
regular appointment made in accordance with the Recruitment Rules. What was
implicit in the said paragraph of the G.O when it refers to appointment to a
cadre/service has been made explicit by the clarification dated 3.4.1993 given
in respect of point No.2. The same has been incorporated in para 3 of the G.O.
23, 27 and 28 of Ministerial Service Rules read as under:
23. Appointment to
the Service.-, (1) Subject to the provisions of rules 6, 6A, 6B and 6C, except
in respect of the posts of Stenographers the Appointing Authority shall appoint
candidates who stand highest in the order of merit in the list prepared under
rule 22, provided that he is satisfied after such enquiry as may be considered
necessary that such candidates are suitable in all other respects for such
Provided that subject
to the provisions of rule 6, the Appointing Authority shall appoint candidates
to the post of Stenographers from the list prepared under sub-rule (2-A) of
rule 22 provided that he is satisfied after such enquiry as may be considered
necessary that such candidates are suitable in all other respects for such
anything contained in rule 7 the persons appointed temporarily as Lower
Division Clerk up to 7.11.75.
who have been
continuously holding such posts or higher posts shall be deemed to have been
appointed regularly on temporary basis provided they fulfil other conditions
prescribed in the Rules. They shall be eligible to be appointed substantively
as Lower Division Clerks according to the date of their temporary appointment
and on occurrence of permanent vacancies and their work being found
Provided that a
person working temporarily as Lower Division Clerk whose work is not found
satisfactory shall be liable to be removed from service.
(i) by giving him one
month's notice if he has served temporarily in connection with the affairs on
the State for less than three years; and (ii) by following the procedure as
laid down in the Rajasthan Civil Services (Classification, Control and Appeal)
Rules, 1958, if he has served for more than three years. All person appointed
temporarily as Lower Division Clerks after 31-3- 1978 shall be required to seek
regular recruitment through the Competitive examination as prescribed in the
anything contained in rule 7, the persons who were appointed temporarily, in
connection with the general strike in accordance with the orders/instructions
issued by the State Government and were holding the posts of Lower Division
Clerks on 27.11.1975 and, who have not passed the prescribed test conducted by
the Appointing Authority under the rules applicable to them at the time of
their appointment shall be given one more chance to pass the prescribed test in
accordance with the rules applicable to them before coming into force of the
rules amended Vide Notification No.F.2(45)DOP/ B-1/72, dated 7.11.1975
published in the Rajasthan Rajpatra, dated 27.11.1975, for being appointed
substantively as Lower Division Clerks according to the date of their temporary
appointment on occurrence of permanent vacancies provided that the service of
persons who, fail to pass the said test to be held by the Appointing Authority
shall be liable to be terminated by giving one month's notice or pay and allowances
in lieu thereof, if they have served temporarily in connection with the affairs
of the State for less than three years;
and three months
notice of pay and allowances in lieu thereof if they have served temporarily in
connection with the affair of the State for more than three years."
anything contained in rule 5, all persons working as Lower Division Clerk
during the period from 8.11.1975 to 31.3.1978 on ad-hoc basis and who could not
appear in or pass the competitive/qualifying examination held by the Commission
as yet, shall on availability of permanent vacancies, be made permanent subject
to the condition that they pass a Performance. Test conducted by the Appointing
Authority in accordance with the syllabus prescribed in Part-V of Schedule-II.
Such persons shall be allowed three chances to pass the said test.
anything contained in Rule 5, all persons working as Lower Division Clerk
during the period from 1.4.1978 to 31.3.1980 on ad hoc basis and who could not
appear in or pass the competitive/qualifying examination held by the commission
as yet, shall on availability of permanent vacancies, be made permanent subject
to the condition that they pass a performance test conducted by the Head of
Department concerned in accordance with the syllabus prescribed in Part IV of
Schedule-II. Such persons shall be allowed three chances to pass the said test:
Provided that if a
person fails to pass the said test in three chances he shall be liable to be
removed from the services :
(i) by giving him one
month's notice, if he served temporarily in connection with the affairs of the
State for less than three years, and (ii) by allowing procedure as laid down in
Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, if
he has served for more than three years.
anything contained in Rule 5, all persons working as Lower Division Clerks
during the period from, 1.4.1980 to 31.12.1984 on urgent temporary basis and
who have not passed the competitive examination held by the commission as yet
shall on availability of permanent vacancies be made permanent subject to the
condition that they pass qualifying examination conducted by the Commission in
accordance with syllabus prescribed in Part-IV of Schedule-II.
Provided that the
Commission shall not recommend any candidate who has failed to obtain a minimum
of 35% marks in each of the compulsory and optional papers in the Lower
Division Clerks' Examination;
Provided further that
if a person fails to pass the said examination his services shall be terminated
on the expiry of 30 days from the date of receiving list of successful
candidates by the Deputy Secretariat to the Government, Department of Personnel
and Administrative Reforms (B-I) Department.
anything contained in rule 5, all persons working as Lower Division Clerks
during the period from 1.4.80 to 31.12.84 on urgent temporary basis and who
have not passed or appeared in the qualifying examination conducted by the
Commission under sub-rule (6) of rule 23 on availability of permanent vacancy
be made permanent subject to the condition that they pass a performance test
conducted by the Appointing Authority within a period of three years in
accordance with the provisions of the rules. Such persons shall be allowed
three chances to pass the said test to be availed within a period of three
Provided that if a
person fails to pass the said test in three chances to be availed within a
period of three years he shall be liable to be removed from services.
anything contained in rule 5 handicapped persons appointed on the post of
L.D.C. during the period from 1.4.80 to 31.3.88 shall on availability of
permanent vacancy be made permanent by the Appointing Authority on their work
anything contained in rule 5, all persons appointed as L.D.Cs. on ad-hoc basic
or on daily wage basis during the period from 1.1.85 to 31.3.90 and are still
working as such on the date this amendment comes into force shall be appointed
on regular basis on availability of vacancy subject to the condition that they
pass a performance test conducted by the Appointing Authority within a period
of three years in accordance with the provisions of the rules. Such persons
shall be allowed three candidates to pass the said test to be availed within a
period of three years;
Provided that if a
person fails to pass the said test in three chances to be availed within a
period of three years, he shall be liable to be removed from services.
27. Appointment to
the Service:- Appointment by promotion to the posts in the services, specified
in the Schedule appended with these Rules, shall be made by the Appointing
Authority on the occurrence of the vacancies as determined under rule 8 from
amongst the persons selected under Rules 25 and 26, as the case may be.
28. Urgent temporary
appointment:- A vacancy in the service which cannot be filled in immediately
either by direct recruitment or by promotion under the rules may be filled in
on urgent temporary basis "by the Government or by the authority competent
to make appointments" as the case may be, by appointing in an officiating
capacity thereto an officer eligible for appointment to the post by promotion
or by appointing temporarily thereto a persons eligible for direct recruitment
to the services, where such direct recruitment has been provided under the
provisions of these Rules:
Provided that such an
appointment will not be continued beyond a period of one year without referring
the case to the Commission for concurrence where such concurrence is necessary,
and shall be terminated immediately on its refusal to concur.
Provided further that
in respect of the service or a post in the service for which both the above methods
of recruitment have been prescribed, the Government or the authority competent
to make appointment, as the case may be shall not, save with the specific
permission of the Government in the Department of Personnel in the case of
State Services and Government in the Administrative Department concerned in
respect of other services, till they temporary vacancy against the direct
recruitment quota by a whole-time appointment for a period exceeding three
months otherwise than out of persons eligible for direct recruitment and after
a short-term advertisement.
(2) In the event of
non-availability of suitable persons fulfilling the requirements of eligibility
for promotion, Government may not withstanding the condition of eligibility for
promotion required under sub-rule (1) above, lay down general instructions for
grant of permission to fill the vacancies on urgent temporary basis subject to
such conditions and restrictions regarding pay and other allowance as it may
shall however be subject to concurrence of the Commission as required under the
said sub rule."
High Court failed to appreciate that the Recruitment Rules made a distinction
between appointments made to the cadre/service in accordance with the relevant
Recruitment Rules which are regular and appointments made de hors the regular
Recruitment Rules which are ad hoc.
far as the dismissal of some special leave petitions summarily it is made clear
that, it does not affect the jurisdiction of the Supreme Court to grant special
leave to appeal and allow the same. It is well settled that a decision which is
per incuriam is not `law' declared in terms of Article 141 to have a binding
effect. (See Prabhakar Rao v. State of A.P. (1985 Supp 2 SCR537), State of Maharashtra
v. Digambar (1995 (4) SCC683), Union of India v. K.N. Sivadas (1997 (7) SCC
30), State of U.P. v. Synthetics and Chemicals Ltd.
(1991 (4) SCC 139)
and Punjab Land Development and Reclamation Corporation Ltd. v. Presiding
Officer, Labour Court (1990 (3) SCC 682).
from Haryana Veterinary case (supra) the position in law as stated in State of
Punjab v. Ishar Singh (2002 (10) SCC 674) and State of Punjab v. Gurdeep Kumar
( 2003 (11) SCC 732) clearly lay down that while reckoning the required length
of service the period of ad hoc service has to be excluded. It is relevant to
note that the first selection scale of pay was excluded several years back on
completion of 9 years of service subsequent to regularization.
After long lapse of
time i.e. after nearly 8 years it was not open to be canvassed that the second
selection scale of pay ought to be granted after the concerned employees having
put in 18 years of service from the date of ad hoc appointment.
being the position the appeals and transfer petitions deserve to be allowed
which we direct.
Civil Appeal /09 @
SLP (C) 25651 of 2005
is a case of the respondent in the present case that though his case was heard
alongwith other cases which are disposed of today, in the instant case the test
was in the year 1981. The regularization was in 1982 and first selection grade
was given in 1991 and the second was given in 2000. That being so, the
respondent is entitled to the benefit which the Government has not granted. The
State is directed to consider this question immediately.
is disposed of.
........................................J. (Dr. ARIJIT PASAYAT)
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