Rajasthan High Court - Jaipur
State Of Raj And Ors vs Smt Sanotsh Dhinwa on 3 July, 2017
Author: K.S. Jhaveri
Bench: K.S. Jhaveri
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Special Appeal Writ No. 589 / 2015
State Of Raj And Ors
----Appellant
Versus
Chandra Ram
----Respondent
Connected With
D.B. Special Appeal Writ No. 926 / 2015
State Of Raj And Ors
----Appellant
Versus
Laxman Singh
----Respondent
D.B. Special Appeal Writ No. 496 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Pramod Kumar Sharma
----Respondent
D.B. Special Appeal Writ No. 501 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Shreeram Jakhar
----Respondent
D.B. Special Appeal Writ No. 502 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
(2 of 94)
[ SAW-589/2015]
Amilal
----Respondent
D.B. Special Appeal Writ No. 503 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Smt Munni Devi
----Respondent
D.B. Special Appeal Writ No. 504 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ratan Singh Yadav
----Respondent
D.B. Special Appeal Writ No. 505 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Nirmala Kumari
----Respondent
D.B. Special Appeal Writ No. 506 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Deep Chand
----Respondent
D.B. Special Appeal Writ No. 507 / 2016
Director Elementary Edu &Ors
----Appellant
(3 of 94)
[ SAW-589/2015]
Versus
Sanwar Mal Saini
----Respondent
D.B. Special Appeal Writ No. 508 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Moti Lal
----Respondent
D.B. Special Appeal Writ No. 509 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Sultan Ram
----Respondent
D.B. Special Appeal Writ No. 510 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Gugan Ram
----Respondent
D.B. Special Appeal Writ No. 511 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Mali Ram
----Respondent
(4 of 94)
[ SAW-589/2015]
D.B. Special Appeal Writ No. 512 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Suraj Mal Saini
----Respondent
D.B. Special Appeal Writ No. 513 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Madan Lal
----Respondent
D.B. Special Appeal Writ No. 514 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Manroop Singh
----Respondent
D.B. Special Appeal Writ No. 515 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Rajpal Yadav
----Respondent
D.B. Special Appeal Writ No. 516 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Sant Kumar Sharma
(5 of 94)
[ SAW-589/2015]
----Respondent
D.B. Special Appeal Writ No. 519 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Narottam Lal
----Respondent
D.B. Special Appeal Writ No. 520 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ram Singh
----Respondent
D.B. Special Appeal Writ No. 521 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Smt Indira Achara
----Respondent
D.B. Special Appeal Writ No. 522 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Satyaveer Singh
----Respondent
D.B. Special Appeal Writ No. 523 / 2016
Director Elementary Edu &Ors
----Appellant
(6 of 94)
[ SAW-589/2015]
Versus
Smt Pushpa Yadav
----Respondent
D.B. Special Appeal Writ No. 524 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ramawat Saini
----Respondent
D.B. Special Appeal Writ No. 525 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Sheesh Ram
----Respondent
D.B. Special Appeal Writ No. 526 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ranjeet Singh
----Respondent
D.B. Special Appeal Writ No. 527 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Deshraj Badsara
----Respondent
D.B. Special Appeal Writ No. 528 / 2016
Director Elementary Edu &Ors
(7 of 94)
[ SAW-589/2015]
----Appellant
Versus
Vidhyadhar
----Respondent
D.B. Special Appeal Writ No. 534 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Hari Singh
----Respondent
D.B. Special Appeal Writ No. 535 / 2016
Director Elementary Edu &Anr
----Appellant
Versus
Rohitash Kumar
----Respondent
D.B. Special Appeal Writ No. 536 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Goru Ram
----Respondent
D.B. Special Appeal Writ No. 537 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ashok Kumar
----Respondent
(8 of 94)
[ SAW-589/2015]
D.B. Special Appeal Writ No. 539 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ramniwas Yadav
----Respondent
D.B. Special Appeal Writ No. 540 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Makhan Lal
----Respondent
D.B. Special Appeal Writ No. 543 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Prakash Chand
----Respondent
D.B. Special Appeal Writ No. 544 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Banwari Lal
----Respondent
D.B. Special Appeal Writ No. 548 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
(9 of 94)
[ SAW-589/2015]
Smt Sanotsh Dhindwal
----Respondent
D.B. Special Appeal Writ No. 549 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Sita Ram
----Respondent
D.B. Special Appeal Writ No. 550 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Narendra Kumar Sharma
----Respondent
D.B. Special Appeal Writ No. 551 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ram Singh
----Respondent
D.B. Special Appeal Writ No. 585 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Laxmi Yadav
----Respondent
D.B. Special Appeal Writ No. 586 / 2016
State Of Raj And Ors
----Appellant
(10 of 94)
[ SAW-589/2015]
Versus
Smt Santosh
----Respondent
D.B. Special Appeal Writ No. 587 / 2016
State Of Raj And Ors
----Appellant
Versus
Ranveer Singh
----Respondent
D.B. Special Appeal Writ No. 588 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Kamla
----Respondent
D.B. Special Appeal Writ No. 589 / 2016
State Of Raj And Ors
----Appellant
Versus
Banwari Lal
----Respondent
D.B. Special Appeal Writ No. 592 / 2016
State Of Raj And Ors
----Appellant
Versus
Sharwani Devi
----Respondent
(11 of 94)
[ SAW-589/2015]
D.B. Special Appeal Writ No. 596 / 2016
State Of Raj And Ors
----Appellant
Versus
Omprakash
----Respondent
D.B. Special Appeal Writ No. 597 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Parwati Duler
----Respondent
D.B. Special Appeal Writ No. 598 / 2016
State Of Raj &Ors
----Appellant
Versus
Mahendra Singh
----Respondent
D.B. Special Appeal Writ No. 599 / 2016
State Of Raj And Ors
----Appellant
Versus
Hawa Singh
----Respondent
D.B. Special Appeal Writ No. 600 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Sanotsh Dhinwa
(12 of 94)
[ SAW-589/2015]
----Respondent
D.B. Special Appeal Writ No. 601 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ved Prakash
----Respondent
D.B. Special Appeal Writ No. 602 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Shiv K Umar Rolan
----Respondent
D.B. Special Appeal Writ No. 603 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ram Singh
----Respondent
D.B. Special Appeal Writ No. 604 / 2016
State Of Raj And Ors
----Appellant
Versus
Shyam Sunder
----Respondent
D.B. Special Appeal Writ No. 605 / 2016
State Of Raj And Ors
----Appellant
(13 of 94)
[ SAW-589/2015]
Versus
Savitri Saini
----Respondent
D.B. Special Appeal Writ No. 606 / 2016
State Of Raj And Ors
----Appellant
Versus
Mahendra Singh
----Respondent
D.B. Special Appeal Writ No. 607 / 2016
State Of Raj And Ors
----Appellant
Versus
Nandram Singh
----Respondent
D.B. Special Appeal Writ No. 608 / 2016
State Of Raj And Ors
----Appellant
Versus
Rajendra Kumar
----Respondent
D.B. Special Appeal Writ No. 609 / 2016
State Of Raj And Ors
----Appellant
Versus
Ranveer Singh
----Respondent
D.B. Special Appeal Writ No. 612 / 2016
State Of Raj And Ors
(14 of 94)
[ SAW-589/2015]
----Appellant
Versus
Pratap Singh
----Respondent
D.B. Special Appeal Writ No. 613 / 2016
State Of Raj And Ors
----Appellant
Versus
Chandrapal &Ors
----Respondent
D.B. Special Appeal Writ No. 614 / 2016
State Of Raj And Ors
----Appellant
Versus
Neeranjan Lal Jewaria&Ors
----Respondent
D.B. Special Appeal Writ No. 621 / 2016
State Of Raj And Ors
----Appellant
Versus
Naveen Singh
----Respondent
D.B. Special Appeal Writ No. 622 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Shankar Lal
----Respondent
(15 of 94)
[ SAW-589/2015]
D.B. Special Appeal Writ No. 623 / 2016
State Of Raj &Ors
----Appellant
Versus
Smt Surila &Ors
----Respondent
D.B. Special Appeal Writ No. 624 / 2016
State Of Raj &Ors
----Appellant
Versus
Since Deceased Yadra Jewaria &Ors
----Respondent
D.B. Special Appeal Writ No. 651 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Nawal Kishore Sharma
----Respondent
D.B. Special Appeal Writ No. 652 / 2016
Director Elementary Edu &Anr
----Appellant
Versus
Ramawtar Sablania
----Respondent
D.B. Special Appeal Writ No. 653 / 2016
Director Elementary Edu &Anr
----Appellant
Versus
(16 of 94)
[ SAW-589/2015]
Smt Vidyawati
----Respondent
D.B. Special Appeal Writ No. 664 / 2016
Director Elementary Edu &Anr
----Appellant
Versus
Smt Manohar Chahar
----Respondent
D.B. Special Appeal Writ No. 665 / 2016
Director Elementary Edu &Anr
----Appellant
Versus
Smt Priyamvada Sharma
----Respondent
D.B. Special Appeal Writ No. 666 / 2016
State Of Raj And Ors
----Appellant
Versus
Devkaran Singh
----Respondent
D.B. Special Appeal Writ No. 667 / 2016
State Of Raj And Ors
----Appellant
Versus
Kunwar Singh
----Respondent
D.B. Special Appeal Writ No. 668 / 2016
Director Elementary Edu &Anr
----Appellant
(17 of 94)
[ SAW-589/2015]
Versus
Atar Singh
----Respondent
D.B. Special Appeal Writ No. 669 / 2016
Secretary Secondary Edu &Ors
----Appellant
Versus
Navneet Kumar &Ors
----Respondent
D.B. Special Appeal Writ No. 691 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ashok Kumar
----Respondent
D.B. Special Appeal Writ No. 692 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Mahendra Singh
----Respondent
D.B. Special Appeal Writ No. 693 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Rohitashava Singh
----Respondent
D.B. Special Appeal Writ No. 694 / 2016
(18 of 94)
[ SAW-589/2015]
Director Elementary Edu &Ors
----Appellant
Versus
Sajjan Kumar
----Respondent
D.B. Special Appeal Writ No. 695 / 2016
State Of Raj And Ors
----Appellant
Versus
Hemraj Singh
----Respondent
D.B. Special Appeal Writ No. 696 / 2016
State Of Raj And Ors
----Appellant
Versus
Bajrang Lal Sharma
----Respondent
D.B. Special Appeal Writ No. 697 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Krishan Chand
----Respondent
D.B. Special Appeal Writ No. 698 / 2016
Director Elementary Edu &Anr
----Appellant
Versus
Jagdish Prasad
(19 of 94)
[ SAW-589/2015]
----Respondent
D.B. Special Appeal Writ No. 699 / 2016
Director Secondary Education&Ors
----Appellant
Versus
Bhomraj
----Respondent
D.B. Special Appeal Writ No. 700 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Dilip Singh
----Respondent
D.B. Special Appeal Writ No. 701 / 2016
State Of Raj And Ors
----Appellant
Versus
Ramkumar Saini
----Respondent
D.B. Special Appeal Writ No. 702 / 2016
State Of Raj And Ors
----Appellant
Versus
Rajendra Kumar
----Respondent
D.B. Special Appeal Writ No. 703 / 2016
State Of Raj And Ors
----Appellant
Versus
(20 of 94)
[ SAW-589/2015]
Smt Vimla
----Respondent
D.B. Special Appeal Writ No. 704 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Santosh
----Respondent
D.B. Special Appeal Writ No. 705 / 2016
State Of Raj&Ors
----Appellant
Versus
Bhagirath Singh
----Respondent
D.B. Special Appeal Writ No. 706 / 2016
State Of Raj And Ors
----Appellant
Versus
Rajendra Singh Kharbas &Ors
----Respondent
D.B. Special Appeal Writ No. 708 / 2016
State Of Raj And Ors
----Appellant
Versus
St Indira Maan
----Respondent
D.B. Special Appeal Writ No. 709 / 2016
State Of Raj &Ors
(21 of 94)
[ SAW-589/2015]
----Appellant
Versus
Hanuman Singh Ranwa
----Respondent
D.B. Special Appeal Writ No. 710 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Kamini Kataria
----Respondent
D.B. Special Appeal Writ No. 711 / 2016
State Of Raj And Ors
----Appellant
Versus
Nahar Singh
----Respondent
D.B. Special Appeal Writ No. 712 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Bramdutt Bundwal
----Respondent
D.B. Special Appeal Writ No. 713 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ramratan Sharma
----Respondent
(22 of 94)
[ SAW-589/2015]
D.B. Special Appeal Writ No. 714 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ramavtar Sharma
----Respondent
D.B. Special Appeal Writ No. 715 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Amar Singh &Anr
----Respondent
D.B. Special Appeal Writ No. 716 / 2016
State Of Raj And Ors
----Appellant
Versus
Rajendra Kumar Sharma&Ors
----Respondent
D.B. Special Appeal Writ No. 717 / 2016
State Of Raj And Ors
----Appellant
Versus
Bhagirath Singh &Anr
----Respondent
D.B. Special Appeal Writ No. 718 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Ravindra
(23 of 94)
[ SAW-589/2015]
----Respondent
D.B. Special Appeal Writ No. 719 / 2016
State Of Raj And Ors
----Appellant
Versus
Bhagirath Prasad Bijarniya&Ors
----Respondent
D.B. Special Appeal Writ No. 721 / 2016
Director Elementary Edu &Anr
----Appellant
Versus
Daya Ram Gurjar
----Respondent
D.B. Special Appeal Writ No. 722 / 2016
State Of Raj And Ors
----Appellant
Versus
Ramlal Singh
----Respondent
D.B. Special Appeal Writ No. 754 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Chandra Prakash Sharma
----Respondent
D.B. Special Appeal Writ No. 765 / 2016
Director Elementary Edu &Ors
----Appellant
(24 of 94)
[ SAW-589/2015]
Versus
Nathu Lal
----Respondent
D.B. Special Appeal Writ No. 766 / 2016
State Of Raj And Ors
----Appellant
Versus
Kurda Ram Jat &Ors
----Respondent
D.B. Special Appeal Writ No. 767 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Rohitash Verma
----Respondent
D.B. Special Appeal Writ No. 768 / 2016
Director Elementary Edu &Ors
----Appellant
Versus
Shriram Jat
----Respondent
D.B. Special Appeal Writ No. 801 / 2016
State Of Raj And Ors
----Appellant
Versus
Manphool Singh
----Respondent
D.B. Special Appeal Writ No. 893 / 2016
State Of Raj And Ors
(25 of 94)
[ SAW-589/2015]
----Appellant
Versus
Mangtu Ram
----Respondent
D.B. Special Appeal Writ No. 899 / 2016
State Of Raj And Ors
----Appellant
Versus
Duli Chand
----Respondent
D.B. Special Appeal Writ No. 900 / 2016
State Of Raj And Ors
----Appellant
Versus
Sukhi Ram
----Respondent
D.B. Special Appeal Writ No. 902 / 2016
State Of Raj And Ors
----Appellant
Versus
Narain Lal
----Respondent
D.B. Special Appeal Writ No. 903 / 2016
State Of Raj &Ors
----Appellant
Versus
Ramkishore Kaushik
----Respondent
(26 of 94)
[ SAW-589/2015]
D.B. Special Appeal Writ No. 904 / 2016
State Of Raj And Ors
----Appellant
Versus
Smt Sudha Devi
----Respondent
D.B. Special Appeal Writ No. 906 / 2016
State Of Raj And Ors
----Appellant
Versus
Ummed Singh
----Respondent
D.B. Special Appeal Writ No. 916 / 2016
State Of Raj And Ors
----Appellant
Versus
Heera Lal Katara
----Respondent
_____________________________________________________
For Appellant(s) : Mr. S.K. Gupta, AAG
For Respondent(s) : Mr. Rajendra Soni, Mr. S.C. Gupta, Mr.
Mahendra Singh Gurjar, Mr. Anoop Dhand &
Mr. Hem Singh Rathore
_____________________________________________________
HON'BLE MR. JUSTICE K.S. JHAVERI
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Order
Per Hon'ble Jhaveri, J.
____ July, 2017
(27 of 94)
[ SAW-589/2015]
1. Pursuant to the order of Division Bench dated
03.10.2016 following questions were referred to us.
"(a) Whether the respondents stand
regularized from the date of appointment
after scrutiny by the District Establishment
Committee?
(b) Whether their order of regularization is
still valid or has been annulled?
(c) Whether the appellants can assail the
order of regularization without having
actually annulled it till today?
(d) Whether there can be two dates for
regularization of an employee, retrospective
for some purposes and prospective for
others?
(e) Does Goparam (supra) lay down the
correct law in distinguishing Jagdish Narain
Chaturvedi (supra) and Surendra Mohnot
(supra)?"
2. The matter was listed before us time and again and
both the sides were directed to produce on record the judgment
which they sought to rely.
3. Counsel for the appellant Mr. Gupta appearing for the
State Government has mainly contended that the guidelines which
have been issued on 25.01.1992 by the State Government, more
particularly clause 3 reads as under:
"3. The service of nine, eighteen or twenty
seven years, as the case may be, shall be
counted from the date of first appointment
in the existing cadre / service in accordance
with the provisions contained in the
Recruitment Rules;
Provided that if an employee subsequent to
his first appointment to a post in a cadre /
service, as a result of direct recruitment, is
appointed to some other post in the same
cadre or any other cadre, service from the
date of later appointment shall be taken
(28 of 94)
[ SAW-589/2015]
into consideration for the purpose of grant
of Selection grades;
Provided further that if an employee
subsequent to his first appointment to a
post in a cadre / service, in accordance with
provisions contained in the relevant service
rules, is promoted to a post in some other
cadre, service from the date of such
promotion shall be taken into consideration
for the purpose of grant of the Selection
grades;
[Provided further that in the case of an
employee who has been/ is declared surplus
and absorbed against a new post either in
the same or another department excluding
absorption on higher post, the service of
nine, eighteen or twenty seven years, as
the case may be, shall be counted for the
purpose of grant of selection grade from the
date of initial appointment in the
Government service in accordance with the
provisions contained in the relevant
recruitment rules. As a result of counting of
service rendered prior to absorption for
grant of selection grade, if the pay of a
junior Government servant happens to be
more than the pay of his senior, no stepping
up of pay of senior Government servant
shall be permissible.]
"Provided further that in the case of an
employee who is declared surplus and
absorbed against a new post, the service of
nine, eighteen or twenty seven years, as
the case may be, shall be deemed to have
been completed on the date on which his
immediately junior employee completes
that period of service or on completion of
service from the date of appointment to the
post held before absorption, whichever is
later."
[Provided further that in the case of an
employee who has been transferred from
one department to another department or
from one appointing authority to another
appointing authority within the same
department in public interest or at his own
request or while serving in one department
of the State Government is recruited
directly in other department on the same
post, the service of nine, eighteen or
twenty seven years, as the case may be,
(29 of 94)
[ SAW-589/2015]
shall be counted for the purpose of grant of
selection grade from the date of initial
appointment on the same post in
accordance with the provisions contained in
the relevant recruitment rules. As a result
of counting of service rendered in previous
department/ under previous appointing
authority for grant of selection grade, if the
pay of a junior Government servant
becomes more than the pay of his senior,
no stepping up of pay of senior Government
servant shall be permissible.]
[Exception - The admissibility of Selection
Grade to Junior Engineer would be on
completion of nine, eighteen or twenty
seven years of continuous service on the
post of Junior Engineer.]"
4. He has further contended that their first appointment in
the existing cadre in accordance with the provisions contained in
recruitment rules clearly establishes that the persons who were
appointed by the recruitment rule or they were being regularized
by the rules or by any subsequent notification.
4.1 He has also placed reliance on the clarification which was
issued by the State Government on 03.04.1993 which reads as
under:
"Attention is invited to Finance Department's
order of even number dated 25.01.1992, as
amended vide order dated 14.02.1992 on the
subject mentioned above. Many Heads of
Departments have solicited clarification on a
number of points regarding grant of Selection
Grades. Accordingly the points in respect of
which references were received are clarified
as under: -
POINT OF DOUBT CLARIFICATION
1) Whether Selection Grade can Yes
be granted under Finance
(30 of 94)
[ SAW-589/2015]
Department Order No.
F.17(5)FD(Gr.2)/84 dated
23.01.1985 as amended from
time to time to the employees
eligible for Selection Grade
under these orders even after
issue of Finance Department
order dated 25.01.1992.
2) Years of service to be Years of service are to be
counted for the purpose of grant counted for grant of Selection
of Selection Grade. Grade from the date the
employee has regularly been
recruited in the existing cadre /
service as per provisions
contained in the relevant
recruitment rules. For example
the following period of service is
not countable for grant of
Selection Grade:- (i) the period
of service rendered in the other
cadre / service before
appointment in the existing
cadre / service. (ii) the period of
service rendered in the existing
cadre / service before regular
appointment in accordance with
(31 of 94)
[ SAW-589/2015]
relevant recruitment rules to the
post.
3) Grant of Selection Grade to The service of nine, eighteen or
the employees declared surplus twenty seven years, as the case
and absorbed against a new may be, shall be deemed to
post or the same post. have been completed on the
date on which his immediately
junior employee completes that
period of service or on
completion of such service from
the date of appointment to the
post held before absorption
whichever is later.
4) What will be the first, second $ [(i) In cases where first,
and third Selection Grade ? second or third promotion post
exists in the same service/
cadre i.e. in Class - IV,
Ministerial and Subordinate
services and the employee
possesses academic
qualifications for promotion the
first, second or the third
Selection Grade shall be the pay
scale of the first, second or the
third promotion post. If the pay
scale of the second / third
(32 of 94)
[ SAW-589/2015]
promotion post available in the
same service/ cadre is higher
than the pay scale of 2200-
4000, the second/ third
Selection Grade shall be the pay
scale corresponding to his
existing pay scale (pay scale of
the post held or the selection
grade) as specified in paragraph
5 of the order dated
25.01.1992.] (ii) in cases where
next promotion post exists in
the same service / cadre but the
employee does not possess
academic qualification
prescribed for promotion the
first, second or third Selection
Grade shall be the pay scale
corresponding to his existing
pay scale as specified in para 5
of the order dated 25.01.1992.
(iii) in cases where promotion
post in regular line does not
exist in the same cadre/ service
the first, second or third
Selection Grade shall be the pay
(33 of 94)
[ SAW-589/2015]
scale corresponding to his
existing pay scale as specified in
para 5 of the order dated
25.01.1992.
(iv) Selection Grades for isolated
posts shall be the pay scale
corresponding to his existing
pay scale as specified in para 5
or order dated 25.01.1992. (v)
in cases where next promotion
post is in a State service, the
Selection Grade shall be the pay
scale corresponding to his
existing pay scale as specified in
para 5 of the order dated
25.01.1992.
5) Authority competent to grant Appointing authority for the post
Selection Grade. held by the employee is
competent to grant Selection
Grade. In respect of categories
of post where seniority is
maintained by an authority,
senior to the appointing
authority, such senior authority
is competent to grant Selection
Grade.
(34 of 94)
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6) The service record which can The record of service which
be considered as satisfactory for makes the employee eligible for
grant of Selection Grade. promotion on the basis of
seniority shall be considered
satisfactory for grant of
Selection Grade. In other words
if the concerned employee can
be promoted to the next higher
post on the basis of his service
record, he can be granted
Selection Grade.
7) Grant of Selection Grade in Such employees are eligible for
case where a Government first Selection Grade. He is not
servant has been offered eligible for second and third
promotion on higher post but selection grade. He is to be
who had forgone/ forgoes the granted first selection grade
chance of promotion. only & no second & third
selection grade.
8) Fixation of pay of the (i) If Selection Grade already
employee who has already been granted under order dated
granted Selection Grade under 23.01.1985 is lower than the
Finance Department order dated first Selection Grade prescribed
23.01.1985. under order dated 25.01.1992,
the pay shall be fixed from
25.01.1992 at the next above
stage in the first Selection Grade
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prescribed under order dated
25.01.1992.
(ii) If Selection Grade already
granted under order dated
23.01.1985 and first Selection
Grade prescribed under order
dated 25.01.1992, is the same,
the pay of the employee shall be
refixed from 25.01.1992 at the
next above stage. (iii) After
fixing the pay under (i) or (ii) as
the case may be, pay in the
second or third selection grade
shall be fixed.
9) Fixation of pay on grant of (i) On grant of first, second or
Selection Grade under order third Selection Grade, as the
dated 25.01.1992. case may be, the pay shall
notionally be arrived at by
adding one increment in the
existing pay scale i.e. pay scale
of the post held or the Selection
Grade and shall be fixed at the
stage next above in the first,
second or third Selection Grade.
(ii) In cases where an employee
was drawing pay at the
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maximum of the pay scale of
the post, on grant of first,
second or third Selection Grade
the pay shall notionally be
arrived at by adding an amount
equivalent to the rate of last
increment in the pay scale of
the post held and then the pay
shall be fixed at the stage next
above in the first, second or
third Selection Grade. (iii) If an
employee becomes eligible for
second or third Selection Grade
straightway in terms of order
dated 25.01.1992 his pay shall
be fixed directly in second or
third Selection Grade with
reference to pay being drawn
immediately before grant of
second or third Selection Grade
as specified in para (i) or (ii)
above.
10) Fixation of pay on regular Employees drawing pay in
promotion, of an employee Selection Grade which is
drawing pay in Selection Grade. identical or lower than the pay
scale of the promotion post,
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shall on regular promotion, be
fixed in the pay scale of the
promotion post at an equal
stage. If there is no equal stage
in the pay scale of the
promotion post, pay shall be
fixed at the next higher stage
11) Next date of increment on In this regard provisions
grant of Selection Grade. contained in para 14 of order
dated 25.01.1992 are quite
clear.
12) Whether the period during Period during which a
which a Government servant Government servant remained /
remained / remains on remains on extraordinary leave
extraordinary leave with or with or without medical
without medical certificate shall certificate shall be counted for
be counted for the purpose of reckoning the period of service
reckoning the period of service for grant of Selection Grade.
for grant of Selection Grade or
not.
13) Grant of increment in cases In cases where date of
where date of eligibility for increment and date of eligibility
Selection Grade and date of for Selection Grade is the same,
increment happens to be the the pay in Selection Grade shall
same. be fixed on the basis of pay
admissible on that date
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including increment. Next
increment shall be admissible
after completion of service for
the full incremental period of
one year under Rule 31 of
Rajasthan Service Rules.
14) What shall be the age of In case of Government servants
superannuation for employees of belonging to Class-IV service
Class-IV service (as defined in drawing pay in Selection Grade
Rule 7(4A) of Rajasthan Service carrying pay scale above pay
Rules) when they draw pay in a scale No 2, the age of
Selection Grade carrying pay superannuation shall be 60
scale above pay scale No. 2. years as clarified under
Clarification No.
F.1(9)FD(Gr.2)/90 dated
30.07.1992."
5. He has contended that the clarification which is
reproduced above is very clear to the effect that the employees
will get all the benefits from the date of their regularization.
6. He has relied upon Section 86 of the Rajasthan
Panchayat Samiti and Zila Parishad Act, 1959, which reads as
under:
"86. Constitution of Rajasthan Panchayat
Samiti and Zila Parishad Service. - (1)
There shall be constituted for the State a
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service designated as the Rajasthan
Panchayat Samiti and Zila Parishad Service
and hereafter in this section referred to as
the Service and recruitment therto shall be
made Districtwise.
(2) The service may be divided into
different categories, each category being
divided into different grades, and shall
consist of -
(i) village level, workers,
(ii) Gram Sevikas
(iii) Primary school teachers,
(iv)Ministerial establishment except
accounts clerks,
(v)Fieldsmen,
(vi) Stockmen, and
(vii) Vaccinators.
(3) The State Government may encadre in
the service any other category or grade of
officers and employees of Panchayat
Samitis and Zila Parishads not included in
class IV services.
(4) The State Government may prescribe
the duties, functions and powers of each
grade and each category of officers and
employees encadred in the service.
(5) Except for first appointments to posts in
the Service-referred to in Sub-section (5) of
Section 31, all appointments to posts in the
service shall be made in accordance with
the provisions of Sections 31 and 60
(a) By direct recruitment, or
(b) By promotion, or
(c) By transfer
(6) Appointment by direct recruitment shall
be made by a Panchayat Samiti or Zila
Parishad, as the case may be, in accordance
with the rules made in this behalf by the
State Government, from out of the persons
selected for the posts in a grade or category
in the district by the District Establishment
Committee referred to in Sub-section (1) of
Section 88.
(7) Omitted by Raj. Act 14 of 1987,
w.e.f.21.4.1987.
(8) The appointing Authority may, so long
as selection is not made by the District
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Establishment Committee or selected
persons are not available for appointment,
make appointments in the prescribed
manner on a temporary basis for a period
not exceeding only after consultation with
the District Establishment Committee.
(8-A) Notwithstanding anything contained
in Sub-section (5), Sub-section (6) or Sub-
section (8), all persons who were appointed
temporarily before the commencement of
the Rajasthan Panchayat Samitis and Zila
Parishads (Amendment) Act, 1976, to posts
encadred in the service and who have
completed at least two years temporary
service on commencement of this Sub-
section shall be substantively appointed to
the posts on which they were temporarily
appointed with effect from the date of such
commencement.
(9) Appointments by
(i) Promotion shall be made by the
Panchayat Samiti or the Zila Parishad, as
the case may be, in the prescribed manner
from amongst the persons whose names
have been entered in the list prepared by
the District Establishment Committee; and
(ii) Transfer shall be made after
consultation with the Pradhans or the
Pramukhs, as the case may be, of the
Panchayat Samitis or the Zila Parishads
from and to which such transfer is proposed
to be made (9-A) Notwithstanding anything
contained in Sub-section (9), the State
Government may transfer any member of
the service from one Panchayat Samiti to
another Panchayat Samiti, whether within
the same district or outside it, and may also
stay the operation of, or cancel, any order
of transfer made under Sub-section (9) or
the rules made there under.
(10) Persons holding posts enacted in the
Service shall be eligible for appointment or
promotion to posts in a State Service or
under the State Government in accordance
with the rules made in that behalf by the
State Government and subject to terms and
conditions Laid down in such rules, and the
persons so appointed or promoted shall
court the period of their holding posts in the
service constituted under this Section for
purposes of seniority and pension.
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(11) Persons holding appointment in a State
Service shall also be eligible for
appointment by transfer to a encadred in
the Service constituted under this Section in
accordance with rules made In this behalf
by the State Government and on terms and
conditions Laid down In those rules."
7. He has relied upon Section 79 of the Act of 1959 which
reads as under:
79. "Power to make rules - (1) The
State Government may, by notification, make
rules for carrying out the purposes of this
Act.
(2) All rule made under this section shall, as
soon as may be after they are made, be laid
for not less than fourteen days before the
House of the State Legislature and shall be
subject to such modification whether by way
of repeal or amendment, as the said house
may make during the session in which they
are so laid."
8. He has specifically relied upon Rule 2 (i) of the Rules of
1959 which defines 'Members of service' which reads as under:
"Member of the service' means a person
appointed substantively to a post in the
service under the provisions of these rules."
9. Rules 6 defines mode of recruitment which reads as
under:
"Sources of Recruitment - Vacanicies after
the commencement of these Rules shall be
filed -
(a) by direct recruitment in the lowest
grade of each category,
(b) by promotion from a lower to a higher
grade in the same category,
(c) by transfer of persons holding
corresponding posts under a Panchayat
Samiti, Parishad or Government :
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Provided that no government servant shall
be transferred to the Service without his
prior consent:
Provided further that the vacancies in the
category of Upper Division Clerks may be
filled in by the direct recruitment from
amongst the candidates holding degree in
Arts, Science, Agriculture or Commerce of
the University established by law in India, if
an member of the service be found eligible
for promotion to fill up such vacancies and
it be not possible to fill up such vacancies
by transfer in accordance with these rules."
10. On 31.12.1995 District Establishment Committee was
authorized to regularize and regularization was done by the
committee.
11. He has further contended that in view of the decision of
the Supreme Court in the case of State of Rajasthan & Ors. vs.
Jagdish Narain Chaturvedi (2009) 12 SCC 49 now the
controversy is covered. The Supreme Court in para 4, 8 to 10, 20
& 22 has observed as under:
"4. In the Notification dated 29.3.1995 paras
3, 4 and 5 are of relevance. Para 3 refers to
regular service while para 4 states about
10% of benefit to 10% to all the eligible
employees and para 5 is the most crucial as
it relates to the benefit being given after
regular appointment. Initially, the period
fixed was 15 years, later it was made to
three different periods of 9 years, 18 years
and 27 years. Subsequent Notification is
dated 25.1.1992 which talks of promotion.
Obviously, the promotion has to be from the
existing cadre in service.
8. It needs to be noted that there is no
scope for raising an issue that executive
instructions can override the rules. The law
is to the contrary. The Notification dated
3.4.1993 speaks of "in accordance with
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recruitment rules". Clarification was
necessary because of doubts regarding
regular appointment. It is made clear that
the period rendered in the existing cadre
before regular employment in accordance
with the relevant recruitment rules to the
post is because of change of cadre the
previous period is not counted so there is no
question of giving the benefit to ad hoc
employees and the appointment letters
which were illustratively filed indicate that
the appointments were till regular
appointment was made.
9. 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.
10. Rule 25(4) relates to prospective
appointment as is clear from the expression
`occurrence'. Therefore, the starting point
has to be as noted above, when the
employee is born in the cadre, as observed
by this Court in Dr. Chanchal Goyal (Mrs.) v.
State of Rajasthan : [2003]2SCR112 ,
Santosh Kumar and Ors. v. G.R. Chawla and
Ors. : AIR2003SC3304 and A.G. Sainath
Reddy v. Govt. of A.P. and 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.
---------------
20. The High Court failed to appreciate that the Recruitment Rules made a distinction between appointments made to the cadre/service in accordance with the relevant Recruitment Rules which are regular and appointments made de hors the regular Recruitment Rules which are ad hoc.
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22. Apart from Haryana Veterinary case (supra) the position in law as stated in State of Punjab v. Ishar Singh (2002)10SCC674 and State of Punjab v. Gurdeep Kumar AIR2001SC2691 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."
12. He has relied upon the decision of Supreme Court in the case of State of Rajasthan & Anr. vs. Surendra Mohnot & Ors. (2014) 14 SCC 77 wherein in paras 15 & 16 it has been observed as under:
15. At the very outset, we may clearly state that the decision in the case of Chandra Shekhar (supra) pertains to grant of increments for the period prior to regularization. It has nothing to do with the grant of selection grade. The circulars which we have reproduced hereinbefore relate to grant of selection grade. In this backdrop, it is to be seen what has been laid down by this Court in the case of Jagdish Narain Chaturvedi (supra). In the said case, a two-
Judge Bench was dealing with the issue whether ad hoc appointments or appointments on daily wages or work-charge basis could be treated as appointments made to the cadre/service in accordance with the provisions contained in the recruitment rules as contemplated by the Government orders dated 25.1.1992 and 17.2.1998. It was contended on behalf of the State that stagnation benefits were given from the date of regularization and for the said purpose reliance was placed on the (45 of 94) [ SAW-589/2015] authority in State of Haryana v. Haryana Veterinary and AHTS Association and Anr. MANU/SC/0584/2000 : (2000) 8 SCC 4. Reference was made to the language used in the circulars which uses the words "appointments relatable to the existing cadre/service". The Court referred to the provisions of Rajasthan Absorption of Surplus Personnel Rules, 1969 and various paragraphs from the Haryana case and the decision in Ram Ganesh Tripathi v. State of U.P. (1997) 1 SCC 621 and came to hold as follows:
18. In order to become "a member of service" a 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.
Ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment. Although the adjective "regular" was not used before the words "appointment in the existing cadre/service"
in Para 3 of the G.O. dated 25-1-1992 which provided for selection pay scale the appointment mentioned there is obviously a need for regular appointment made in accordance with the Recruitment Rules. What was implicit in the said paragraph of the G.O. when it refers to appointment to a cadre/service has been made explicit by the clarification dated 3-4-1993 given in respect of Point 2. The same has been incorporated in Para 3 of the G.O. dated 17-2-1998.
Proceeding further, the Court ultimately held thus:
Apart from Haryana Veterinary case the position in law as stated in State of Punjab v. Ishar Singh (2002) 10 SCC 674 and State of Punjab v. Gurdeep Kumar Uppal (2003) 11 SCC 732 clearly lays down that while (46 of 94) [ SAW-589/2015] reckoning the required length of service the period of ad hoc service has to be excluded.
16. From the aforesaid enunciation of law it is quite vivid that the period for grant of selection grade has to be reckoned from the date of regularization in service and not prior to that. Thus, the aforesaid judgment of this Court pertains to the same circular and is a binding precedent from all spectrums."
13. The Supreme Court in the case of Rajasthan State Industrial Development & Investment Corporation vs. Subhash Sindhi Cooperative Housing Society, Jaipur & Ors.
[2013] 5 SCC 427 has held as under:
"34. Be that as it may, there can be no estoppel against the law or public policy. The State and statutory authorities are not bound by their previous erroneous understanding or interpretation of law. Statutory authorities or legislature cannot be asked to act in contravention of law. "The statutory body cannot be estopped from denying that it has entered into a contract which was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do." Even an offer or concession made by the public authority can always be withdrawn in public interest. (Vide: State of Madras and Anr. v. K.M. Rajagopalan AIR 1955 SC 817; Badri Prasad and Ors. v. Nagarmal and Ors. AIR 1959 SC 559; and Dr. H.S. Rikhy etc. v. The New Delhi Municipal Committee AIR 1962 SC 554).
In Surajmull Nagoremull v. Triton Insurance Co. Ltd.: AIR 1925 PC 83, it was held as under:
... No court can enforce as valid, that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties (47 of 94) [ SAW-589/2015] or by a failure to plead or to argue the point at the outset...
A similar view was re-iterated by the Privy Council in Shiba Prasad Singh v. Srish Chandra Nandi"
14. He has further contended that pursuant to the judgment in the case of Jagdish Narayan Chaturvedi (Supra) and the circular which was issued on 29.06.2009 whereby the ad-
hoc service is not required to be considered and only benefit will be granted from the date of regularization, however, this has created unrest by the impugned order amongst employees.
Therefore, the clarificatory circular issued on 20.08.2010 made it clear that where-ever the benefits are granted they shall not be withdrawn. However, in future the ad-hocism is not to be considered for the purpose of benefit of 9, 18 & 27 years of service.
14.1 The circulars dated 29.06.2009 & 20.08.2010 read as under:
(i) "No. F.16(2)FD(Rules)/98 Jaipur 29.06.2009 Sub: Prescription of Selection Grades for employees in Class-IV, Ministerial and Subordinate Services and those holding isolated posts and fixation of pay in Selection Grades.
The State Government servants in Class-IV, Ministerial and Subordinate Services and holders of isolated posts were allowed one selection grade on completion of 15 years of service after regular appointment on that post subject to fulfillment of other conditions laid down under Finance Department Order No. F.17(5)FD(Gr.2)/84 dated 23.01.1985 w.e.f. 01.01.1985.
(48 of 94) [ SAW-589/2015] Subsequently, in suppression of all orders issued in the past, the State Government servants in Class-IV, Ministerial and Subordinate Services and those holding isolated posts and drawing pay in R.C.S (R.P.S.) Rules, 1989 the maximum of which does not exceed Rs. 3200/- were allowed three selection grades on completion of service of 9, 18 and 27 years respectively w.e.f. 25.01.1992 under Order No. F.20(1)FD(Gr.2)/92 dated 25.01.1992. The Service of nine, eighteen and twenty seven years was to be counted from the date of first appointment in the existing cadre/service in accordance with the provisions contained in the Recruitment Rules, subject to fulfillment of other conditions laid down under Finance Department Order No. F.20(1)FD(Gr.2)/92 dated 25.01.1992. Under Finance Department order No. F.20(1)FD(Gr.2)/92 dated 03.04.1993, it was clarified that for the purpose of grant of selection grades, service is to be counted from the date the employee has regularly been recruited in the existing cadre/service as per provisions contained in the relevant recruitment rules, it was further clarified that the period of service rendered before regular appointment in accordance with relevant recruitment rules to the post shall not be counted for grant of selection grade.
Further in supersession of all orders issued in the past, the State Government servants in Class-IV, Ministerial and Subordinate Services and those holding isolated posts were allowed three selection grades on completion of service of nine, eighteen and twenty seven years respectively under Finance Department order No. F.16(2)FD(Rules)/98 dated 17.02.1998 effective from 01.09.1996. The service of nine, eighteen and twenty seven years was to be counted from the date of first regular appointment in the existing cadre/service in accordance with the provisions contained in the relevant recruitment rules.
Some employees who were appointed on ad-hoc basis and subsequently appointed on regular basis i.e. in accordance with the provisions contained in relevant recruitment rules filed Appeals in R.C.S. Appellate Tribunal for allowing them selection grades by counting their services from the date of their appointment on the ad-hoc basis. The R.C.S. Appellate tribunal decided such Appeals in favour of the Appellants (49 of 94) [ SAW-589/2015] and allowed them selection grades by counting their services from the date of their initial appointment to the post on ad-hoc basis. The State Government filed writ petitions in the Hon'ble High Court, Jaipur/ Jodhpur against the orders passed by the R.C.S. Appellate Tribunal. The writ petitions filed by the State Government against the orders of R.C.S. Appellate Tribunal were dismissed.
The State Government filed SLP © No.2848/2006 and other SLPs in the Hon'ble Supreme Court against the judgment passed by the larger bench of the Hon'ble Rajasthan High Court. The SLPs filed by the State Government have been allowed by the Hon'ble Supreme Court. All the SLPs filed by the State Government were decided by the Hon'ble Supreme Court by a common order on 08.05.2009 in favour of the State government. The operative part of the judgement reads as under:-
21. The High Court failed to appreciate that the recruitment rules made a distinction between appointments made to the cadre/service in accordance with the relevant recruitment rules which are regular and appointments made de hors the regular Recruitment Rules which are ad hoc.
23 Apart from Haryana Veterinary case (supra) the position in law as stated in State of Punjab V. Ishar Singh (2002(10) SCC 674) and State of Punjab V. Gurdeep Kumar (2003(11) SCC 732) clearly lay down that while reckoning the required length of service the period of ad hoc, service has to be excluded. It is relevant to note that the first selection scale of pay was excluded several years back on completion of 9 years of service subsequent to regularization. After long lapse of time i.e. after nearly 8 years it was not open to be canvassed that the second selection scale of pay ought to be granted after the concerned employees having put in 18 years of service from the date of ad hoc appointment.
24. Above being the position the appeals and transfers petitions deserves to be allowed which we direct.
It is, therefore, enjoined upon all the authorities competent to sanction selection grades that in cases where selection grades have been granted to the State employees by counting the service rendered before regular appointment in the (50 of 94) [ SAW-589/2015] cadre/service in accordance with the provisions contained in the relevant recruitment rules i.e. ad-hoc service/work-charged service/daily wages etc. may be reviewed. Such employees may be granted selection grades by counting the service rendered by them only after regular appointment in the cadre/ service in accordance with the provisions contained in the relevant recruitment rules. A Copy of the judgment dated 08.05.2009 of the Hon'ble Supreme Court is enclosed. All such cases may be reviewed and decided by 31st of July, 2009 positively and compliance report should be conveyed to the Administrative Department latest by 10th of August, 2009. The Administrative Department shall ensure that compliance of the aforesaid orders is made in time by all the appointing authorities under them. In case of non compliance of these orders, Administrative Department may take action against the defaulting authorities. The excess payment drawn by the concerned employees due to grant of selection grades to them by counting the service rendered before regular the relevant recruitment rules shall, however, not be recovered for the period upto 30.06.2009. Only from 01.07.2009, the payment of pay and allowances shall be made on the basis of revised rates of pay as per this order."
(ii) No. F.16(2)FD(Rules)/98 Jaipur 20 August 2010 Sub: Prescription of Selection Grades for employees in Class-IV Ministerial and Subordinate Services and those holding isolated posts and fixation of pay in Selection Grades issued in accordance of Supreme Court Judgment dated 08.05.2009 in Civil Appeal No.3620/09.
The State Government Servants in Class-IV, Ministerial and Subordinate Services and holders of isolated posts whose maximum of the pay scale does not exceed Rs.3200/- were allowed three selection grades on completion of service of 9,18 and 27 years from the date of first regular appointment in the existing cadre/service in accordance with provisions contained in the relevant recruitment rules.
In some cases, the appointing authorities mis- interpreted the aforesaid provisions and allowed (51 of 94) [ SAW-589/2015] selection grades by counting the period of ad-hoc service.
The State Government filed SLPs in the Hon'ble Supreme Court against the judgment of larger Bench of the Hon'ble High Court regarding grant of selection grade by counting the period of ad- hoc service from the date of initial appointment under State Government instead of regular service as per recruitment rules. Hon'ble Supreme Court accepted the SLPs filed by the State Government and passed order on 8.5.2009 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.
As per this judgment dated 8.5.2009 of the Hon'ble Supreme Court, the period of ad-hoc service is not countable for the purpose of grant of selection grades. In compliance, State Government issued an order No. F.16(2)FD/Rules/98 dated 29.6.2009 prescribing the method of fixation of pay in selection grade w.e.f. 1.7.2009.
Representations have been received that order dated 29.6.2009 has resulted in substantial drop in emoluments of lowly paid employees causing financial hardships.
Accordingly, the State Government has reconsidered the matter and in partial modification of order of even number dated 29.6.2009, the Governor is pleased to order that in cases where Government servants have been granted selection grade prior to order dated 29.6.2009 by counting period of ad-hoc service, such cases may not be reviewed. However, where additional selection grades become admissible to such employees after 29.6.2009 under the rules, this shall be granted by excluding the period of ad-hoc service as per the orders of Hon'ble Supreme Court. For example, if any employee got the advantage of first selection grade prior to 29.6.2009, on completion of service of 9 years (after inclusion of say, three years ad-hoc service), his next selection grade on completion of service of 18 years, on or after 29.6.2009, (52 of 94) [ SAW-589/2015] shall be granted only after three years of ad-hoc service is added to 18 years i.e. 18+3=21 years.
All pending cases would be decided as per these orders.
The cases of grant of selection grade decided subsequent ot order of even number dated 29.6.2009, may be reviewed and revised in accordance with the provisions of this order. Similarly pension cases of Government servants, finalized after re-fixation of pay under order dated 29.6.2009, may also be reviewed and revised. However cases of persons who retired prior to 29.6.2009 would not be re-opened."
15. He has specifically pointed out that the original appointment order clearly establishes that it was purely a temporary stop gap arrangement and the incumbent was not recruited through regular mode of employment. It will be relevant to take note of clarification dated 6 th February, 1999, which reads as under:
"jktLFkku ljdkj f'k{kk ¼xzqi&5½ foHkkx Øekad%& ia- 18 ¼4½ f'k{kk&5@98 t;iqj] fnukad 6-2-99 funs'kd] izkjfEHkd f'k{kk] jktLFkku] chdkusjA fo"k;%& xzkeh.k fodkl ,oa iapk;rh jkt foHkkx ls LFkkukUrfjr gksdj vk, deZpkfj;ksa dh LØhfuax ds ckn tkjh vkns'k dh frfFk fu;fer fu;qfDr ekus tkus ds lac/a k esAa izlx a %& vkidk i= Øekad f'kfojk@izk-a @fLFkjh@12702@98 fnukad 22-12-98 egksn;] mijksDr izklafxd fo"k; esa vkius ;g ekxZn'kZu pkgk gS fd iapk;r lfefr;ksa }kjk f'k{kk foHkkx esa LFkkukUrfjr gksdj vk;s deZpkfj;ksa dh lsokvksa dk fu;fefrdj.k LØhfuax ds ckn budh izFke fu;qfDr frfFk ls gh dj fn;s tkus ds QyLo:i D;k mu (53 of 94) [ SAW-589/2015] deZpkfj;ksa dh lsok;s Hkwry{kh izHkko ls fu;fer ekuh tk ldrh gSA vr% izdj.k dk vko';d ijh{k.k djus ds i'pkr ;g Li"V fd;k tkrk gS fd iapk;r lfefr ,oa ftyk ifj"kn lsok fu;eksa esa vko';d la'kks/ku laca/kh vf/klwpuk Øekad 4¼11½ ih ,.M ts-@vkj-Mh- @ih@87@192 fnukad 17-3-89 ds vuqlkj bu deZpkfj;ksa dh LØhfuax ds ckn vkns'k dh tkjh gksus dh frfFk ls gh budh fu;fer fu;qfDr ekuh tk;sxhA mDr Li"Vhdj.k dkfeZd ¼d&2½ foHkkx ls vkbZ- Mh- la[;k 148 fnukad 3062@99 ls lgefr mijkUr tkjh gSA"
(This was only a sample case for consideration.)
16. However, the counsel for the employees, mainly Mr. Gurjar, Mr. Soni, Mr. Amit Jindal and Mr. Dhand have contended that the view taken by the Division Bench specifically is required to be appreciated and the Supreme Court judgment has been specifically distinguished and interpreted by the Division Bench of this Court. The counsel for the employees have taken us to Rule 23, 24, 27, 27A and the circular dated 06.04.1998 which read as under:
17. Rule 23 regarding temporary appointments reads as under:
"23. (1) In case no selection has been made or no person selected by the Commission is available at any time, for filling a vacancy , appointment may be made by the Appointing Authority temporarily for a period not exceeding six months, provided the filling up of the vacancy is required emergently and certificate to the effect that no selected is available has been obtained from the Committee.
(2) If it is proposed to fill the vacancy by direct recruitment temporarily, the nearest (54 of 94) [ SAW-589/2015] Employment Exchange may he asked to send a panel of names of persons possessing the required qualifications at least five Times the number of vacancies to be so filled. The appointing authority will then appoint from out of the panel of candidates suitable for the post. (3) If it is proposed to fill vacancy by promotion temporarily, the senior most employee in the next lower grade may be so appointed by the appointing authority:
Provided that if the record of the senior most employee is not satisfactory, the person immediately below him may be so appointed.
(4) The period of such temporary appointment may, however, be extended beyond six months, only with the previous concurrence of the Committee. (5) The temporary appointments made under this Rule shall not be continued for a period exceeding 12 months without the prior concurrence of the Commission. (6) The temporary appointment made under this Rule shall terminate as soon as a candidate selected by the Commission or Committee, as the case may be, is made available. Candidates so made available and placed at the disposal of Panchayat Samiti/Zila Parishad shall be appointed by the appointing authority forthwith, on the vacancies against which temporary appointments have been made, and on their reporting for duty, persons holding temporary appointments shall be deemed to have vacated their office and shall not be entitled to any salary thereafter. "
24. Seniority- Seniority in each grade or category shall be determined by the date of the order of substantive appointment to a post in that grade or category:
Provided-
(i) that the seniority inter se of the members of the Service, appointed to posts in a particular grade or category before the commencement of these Rules, shall be such as has been or may be fixed by the Government.
(55 of 94) [ SAW-589/2015]
(ii) that if two or more persons are appointed to the posts in the same grade or category under the same order or orders of the same date, their seniority shall be in the same order in which their names appear in the districtwise list prepared by the Commissions or Committee as the case may be.
(iii) that the seniority of persons appointed by transfer from Government service, after the commencement of these Rules, shall be determined ad hoc by the Committee on the basis of continuous length of substantive service on the analogous post.
(iv) That a seniority list of the village level worker and group Panchayat Secretaries inter-se and a similar list of stockmen and veterinary compounders inter se shall be prepared in the order of the date of their substantive appointments.
27. Confirmation- A probationer shall be confirmed in his appointment at the and of the period of his probation if the panchayat Samiti or the Zila Parishad is satisfied that his integrity is unquestionable, his work is satisfactory and that he is otherwise fit for confirmation.
27A. Notwithstanding anything contained in the said rules a person who has been regularly recruited against temporary post and has put in two years service after, such regular recruitment, shall not be placed on probation on conversion of such post into permanent one and he shall be confirmed after he has fulfilled other conditions of confirmation as laid down in the rules.
18. Circular dated 6.4.1988 issued by the State Government reads as under:
"jktLFkku ljdkj xzkeh.k fodkl ,oa iapk;rh jkt foHkkx Øekad ,Q&139¼14½ xzkfoi@f'k{kk@86@795 fnukad 6-4-88 1- leLr ftyk dysDVj (56 of 94) [ SAW-589/2015] 2- leLr lfpo ftyk LFkkiuk lfefr ftyk ifj"kn dk;kZy;
ifji= fnukad 31-12-85 ls iwoZ ds fu;qDr ,oa fujUrj dk;Zjr fu/kkZfjr ;ksX;rk ,oa vk;q lhek ds vUrxZr vkus okys iapk;rh jkt deZpkfj;ksa dks LFkk;h fd;s tkus ds laca/k esa jkT; ljdkj }kjk fu.kZ; fy;k tk pqdk gS rFkk fu;eksa esa la'kks/ku ds vkns'k tkjh fd;s tk jgs gSA pwafd ftyk LFkkiuk lfefr;ksa }kjk v/;kidksa ds fjDr in Hkjus gsrq foKkiu tkjh fd;s tk pqds gS ,oa p;u dh izfØ;k izkjEHk dj nh xbZ gSA vr% bl fLFkfr esa vkidks funsZf'kr fd;k tkrk gS fd iapk;r lfefr esa fnukad 31-12-85 rd fu;qDr ,sls v/;kid@v/;kfidk;sa gSA tks fuEukafdr 'krkZ dks iw.kZ djrs gks] dh laoh{kk ¼Øhfux½ ftyk lfefr }kjk dh tkdj mudh lsok;sa fu;fer dh tkosa rFkk blds ckn esa jgs fLFkr inks ij u;s vk'kkfFkZ;ksa dk p;u fd;k tkusaA 1- ftudh fu;qfDr fu;kstu dk;kZy; ls izkIr lwph ds vuqlkj gqbZ gSA 2- tks fuEukafdr U;wure fu/kkZfjr ;ksX;rk /kkj.k djrs gksA 'ksf{kf.kd & ek/;fed ijh{kk vFkok f'k{kk foHkkx jkt- } kjk led{k ?kksf"kr ijh{kk mRrhZ.k iz'ks{kf.kd& ch-,l-Vhlh vFkok led{k ekU;rk izkIr izf'k{k.k mRrhZ.k fo'ks"k& p;u dsoy lkekU; v/;kid in gsrq gh fd;k tkuk gS m/kksx 'kkjhfjd f'k{kk laxhr o fp=dyk fo"k; esa v/;kid gsrq ughA 3- tks fu;qfDr ds fnu fu/kkZfjr vk;q lhek esa vkrs gksA 4- ftUgksaus fnlEcj 85 rd dk;ZHkkj xzg.k dj fy;k gksA bl laca/k esa vki }kjk dh xbZ dk;Zokgh ls voxr djkus dk d"V djsaA"
19. He has also relied upon the amendment made in Rule 6 which reads as under:
"2- fu;e 6 ds f}rh; ijUrqd ds i'pkr~ ,d u;k ijUrqd tksM+k tk;sxk] vFkkZr%& ijUrq ;g Hkh fd fu;qfDr izkf/kdkjh }kjk fu;e 23 ds v/khu 31-12- 85 dks ;k mlls iwoZ v/;kid] xzke lsod] dfu"B fyfid] LVkdesu] pkyd vkSj prqFkZ (57 of 94) [ SAW-589/2015] Js.kh deZpkjh ds :i esa rnFkZ LFkkiUu vLFkk;h vk/kkj ij fu;qä ,sls O;fä;ksa dh] tks bl ijUrqd ds izo`r gksus dh rkjh[k rd bl :i esa fujUrj dk;Z djrs jgs gSa] /kkfjr in ij mudh mi;qärk ds U;k;fu.kZ;u ds fy, ftyk LFkkiu lfefr }kjk Nkuchu dh tk;sxh c'krsZ os ;k rks lh/kh HkrhZ ;k inksUufr ds fy, bu fu;eksa esa fofgr visf{kr vgZrk,a ;k ,slh foghr vgZrk,a j[krs gksa ftuds vk/kkj ij ;s O;fä fu;e 23 ds v/khu fu;qä fd;s x;s FksA lfefr ,sls Øe dh Hkh flQkfj'k djsxh ftlesa bu O;fDr;ksa dks j[kk tkuk gSaA"
20. Then he has relied upon the circular dated 11.08.89 which reads as under:
"jktLFkku ljdkj xzkeh.k fodkl ,oa iapk;r jkt foHkkx Øekad% ,Q&139 ¼14&15½ xzkfoi@f'k{kk @89@1275 t;iqj fnukad% 11-08-89 ifji= bl foHkkx }kjk tkjh ifji= ,Q&139 ¼14&15½ xzkfoi@f'k{kk @89@351&376 fnukad 22-04-89 ,oa lela[;d i=kad fnukad 16-05-89 dks vfxze vkns'k gksus rd LFkfxr fd;k tkdj jkT; ljdkj }kjk fu.kZ; fy;k x;k gS fd fnukad 31-12-85 ds ckn fu;qDr ,oa fujUrj dk;Zjr v/;kidks@v/;kfidkvksa dks tks fd fu/kkZfjr ;ksX;rk o vk;q lhek j[krs gS ,sls leLr v/;kid@v/;kfidkvksa tks fnukad 15-05-88 rd fu;qDr Fks mUgsa 'ks"k fjDr inksa ij fu;qfDr fd;s tkus ds ckjs esa fu.kZ; fy;k x;k gS rFkk fu;eksa esa la'kks/ku dk vkns'k tkjh fd;k tk jgk gSaA fofHkUu ftyk LFkkiuk lfefr } kjk v/;kidksa@v/;kfidkvksa ds fjDr in Hkjus gsrq o muds p;u dk izfØ;k iwoZor~ jgsxk ,oa mfYyf[kr v/;kidksa@v/;kfidkvksa ds ckcr fnukad 16-05-88 rd fu;qDr ,sls v/;kidksa@v/;kfidkvksa tks fuEukafdr 'krksZa dks iw.kZ djrs gks] dk laoh{kk ¼LØhfuax½ ftyk LFkkiuk lfefr }kjk dh tkdj mudk lsokFkZ fu;fer dh tkosaA 1- ftudk fu;qfDr fu;kstu dk;kZy; ls izkIr lwph ds vuqlkj gqbZ gks (58 of 94) [ SAW-589/2015] 2- tks fuEukafdr U;wure fu/kkZfjr ;ksX;rk /kkj.k djrs gks%& ¼d½ 'kS{kf.kd % ek/;fed ijh{kk vFkok f'k{kk foHkkx jktLFkku }kjk led{k ?kksf"kr ijh{kk mRrh.kZ gksA iz'kS{kf.kd % ch-,l-Vh-lh- vFkok led{k ekU;rk izkIr iz'kS{kf.kd mRrh.kZ gksA fo'ks"k % p;u dsoy lkekU; v/;kid in gsrq gh fd;k tkuk gS m/kksx] 'kkjhfjd f'k{kk] laxhr o fp=dyk fo"k; ds v/;kid gsrq ughaA 3- tks fu;qfDr ds fnu fu/kkZfjr vk;q lhek esa vkrs gksA 4- ftUgksaus fnukad 16-05-88 rd dk;Zxzg.k dj j[kk gksA mijksDr p;u izfØ;k ds ckn vo'ks"k jgs inksa ij vk'kkfFkZ;ksa dk fu;ekuqlkj p;u fd;k tkosaA p;u izfØ;k esa fuEu izdkj izkFkfedrk nh tkosa%& ¼1½ vo'ks"k fjDr inksa ij vuqlwfpr tkfr@tutkfr ds vk'kkfFkZ;ksa dks fu;qfDr gsrq vkj{k.k dh lhek rd fu;qfDr nh tkos ,oa ;fn csdykx voxr gks rks mls iwjk fd;k tkosA ¼2½ ftu O;fDr;ksa dh vk;q lhek 5 flrEcj 1989 dks lekIr gksus tk jgh gksA ¼3½ iapk;r lfefr;ksa esa v/;kid dk dk;Z fd;s gqos O;fDrA ¼4½ e`rd deZpkfj;ksa ds vkfJrksa dks fu;ekuqlkj fu;qfDr dh tkosaA ¼5½ le;≤ ij ekU;rk fujLr gksus ls ,sls fMIyksek /kkfj;ksa dks fu;qfDr ugha nh tkosaA ,lMh@& fof'k"B 'kklu lfpo ,oa funs'kd xzkeh.k fodkl ,oa iapk;rh jkt foHkkx jktLFkku t;iqj"
21. He has also taken us to the order of the learned Single Judge in the case of Bhura Ram Saharan & Ors. vs. State of Rajasthan & Ors. in SB Civil Writ Petition No.5851/2011, decided on 05.07.2013 wherein the Single Judge in para 9 & 10 observed as under:
"9. I have considered the rival submissions and perused the material on record and the decision of the Hon'ble Supreme Court in Jagdish Narain Chaturvedi's case (supra).
(59 of 94) [ SAW-589/2015]
10. In view of the Hon'ble Supreme Court in Jagdish narain Chaturvedi's case (supra) and other earlier decisions, there remains no quarrel with the preposition that for the purpose of grant of Selection Grade, the services rendered by an employee on ad hoc basis before regular appointment to the post in accordance with the relevant recruitment rules, has to be excluded, while reckoning the required length of service. But then in the instant case, indisputably, the petitioners have been regularised in service on the post of Teacher Gr.III pursuant to the decision of the competent authority from the date of their initial appointment. It is not in dispute that for all intent and purposes the petitioners have been treated to be regular employees, from the date of their initial appointment and for this reason, on completion of 9 years of services, they have already been granted First Selection Grade in terms of Government order dated 25.1.1992 taking the date of their initial appointment as the date of their regular appointment. Once, the respondents have regularised the services of the petitioners from the date of their initial appointment, the same has to be treated to be the date of their regular appointment for reckoning the required length of service for the purpose of grant of Selection Grades in terms of the Government order dated 25.1.1992. In this view of the matter, the decision of the Hon'ble Supreme Court in Jagdish Narain Chaturvedi's case (supra) cannot be applied to the facts of the present case, and the Government order dated 29.6.09 issued pursuant thereto, cannot militate against the right of the petitioners to claim Second Selection Grade in terms of the Government order dated 25.1.1992 on completion of 18 years of service to be reckoned from the date of their initial appointment."
22. He has also relied upon another decision of Division Bench in DB Special Appeal (Writ) No.44/2016 wherein the Division Bench has observed as under:
(60 of 94) [ SAW-589/2015] "In the instant case before us, the employee was initially appointed as Teacher in Zila :Parishad Jodhpur vide order dt. 15.4.1989 regularizing service of each of the employee/teacher from the respective dates which has been indicated in the order and obviously that is to be considered the date of their regular appointment.
On a specific question put to counsel as to whether the order dt 15.4.1989 (Ann.2) has ever been modified, counsel on instructions submits that the order pursuant to which the service of the employee/teacher has been regularized still holds the field and not modified at all.
The order dt. 15.4.1989 clearly indicates that each of the employee has been considered to be regularly appointed in the respective cadre from the date indicated in the order and became member of service and that makes each of the employee entitled for grant of selection scale on completion of 9-18-27 years of service.
We do not find any reasons for the govt. in filing special appeal when the issue remains no more res integra in the light of controversy finally settled by the Apex Court mandating the Govt. to consider the case of each of the employee for grant of selection scale from the date of their regular appointment obviously the date from which the employee became member of service.
After we have heard counsel at length, we do not find substance in the instant special appeal Consequently, the special appeal being devoid of merit accordingly dismissed."
23. He has strongly relied upon the decision of this Court in the case of Smt. Surila & Ors. vs. State of Rajasthan & Ors. in SB Civil Writ Petition No.2841/2013 along with other writ petitions decided on 01.10.2015 and has contended that another Single Judge of this Court has distinguished the Supreme Court judgment and has allowed the writ petitions holding as under:
(61 of 94) [ SAW-589/2015] "12. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
13. Indisputably, the petitioners have been accorded regularization from the date of their initial appointment by various orders of regularization as indicated under column number 2, as detailed out hereinabove.
14. In the case of Shanker Lal (supra), the regular appointment was accorded to the petitioners therein with effect from 23rd February, 2000, and accordingly, for the purpose of grant of selection scale on completion of 9, 18 and 27 of service, the same date (23rd February, 2000) was reckoned for the purpose of grant of selection scales. In the instant batch of writ applications, the petitioners have been accorded 'regular appointment' from the date of 'initial appointment' though the orders of regularization were issued later.
15. For the reasons and discussions hereinabove as well as in view of the opinion of the Coordinate Bench of this Court in the case of Ram Niwas Nimoria and Bhura Ram Saharan (supra), I am not pursuaded to take a view different.
16. Consequently, all the writ petitions succeed, and are hereby allowed.
17. The respondents are directed to consider the case of the petitioners, reckoning the 'initial date of appointment' as indicated in the order of regularization which happens to be 'Date of Initial Appointment', for the purpose of grant of selection scale after completion of 9, 18 and 27 years of service.
18. The respondents are further directed to undertake the exercise and release the due benefits to the petitioners within a period of three months from the date of receipt of a certified copy of this order.
19. No costs."
24. Mr. Soni has relied upon the following decisions:
(62 of 94) [ SAW-589/2015]
(i) The Supreme Court in the case of Direct Recruit vs. State of Maharastra AIR 1990 SC 1607 has observed as under:
To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(63 of 94) [ SAW-589/2015] (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
In view of the above and the other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingly dismissed. There will be, however, no order as to costs.
(64 of 94) [ SAW-589/2015]
(ii) The Supreme Court in the case of State of West Bengal vs. Aghore Nath Dey & Ors. 1993(3) SCC 371 has observed as under:
"The question, therefore, is whether Shri Sanghi is right in his submission that this case falls within the ambit of the said conclusion (B) in Maharashtra Engineers case. The submission of the other side is that this case falls, not within conclusion (B) but the corollary mentioned in con- clusion (A), of that decision. Conclusions (A) and (B), which alone are material, are as under :-
"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B)If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."
It is not necessary to deal at length with the decisions of this court in A. Janardhana and Narender Chadha in view of the later constitution bench judgment in Maharashtra Engineers' case, wherein all the relevant earlier decisions have been considered before summarising the conclusions (in para 44 of SCR = para 47 of SCC).
We may, however, briefly refer to the decisions in A. Janardhana and Narender Chadha, since Shri Sanghi has strongly relied on them. It may be mentioned that both these decisions related to inter-se seniority of direct recruits and promotees, the two channels for appointment to the posts, where there was a quota prescribed for the two channels leading to rota for confirmation, and the seniority was based (65 of 94) [ SAW-589/2015] on the date of confirmation, according to rules. The dispute arose as a result of promotions being made in excess of the promotees quota, in the case of the surplus promotees. It was in that context, that the question of taking into account longer period of continuous officiation for the purpose of fixing inter-se seniority of direct recruits and promotees, came up for consideration. Those cases are clearly distinguishable. In the present case, there is no dispute between promotees and direct recruits, the claim of the writ petitioners being based only as direct recruits in the cadre of Assistant Engineers, and not as promotees from the lower cadre of Sub- Assistant Engineers to which they had earlier belonged. The present is, therefore not a case of a dispute relating to the surplus promotees, who were given promotion regularly in accordance with rules, but in excess of the quota fixed for them under the rules. In the present case, all the writ petitioners are persons who were given ad hoc temporary appointments for a fixed period, which was extended from time to time till their regularisation on 26.2.1980, and that too by relaxation of the condition of selection by the Public Service Commission, which was an express condition of their ad hoc appointment and a requirement for regular appointment under the Rules. Assuming the relaxation made in their case by the State Government on 26.2.1980 to be valid, as the same is not disputed before us, they could be treated as regularly appointed only with effect from 26.2.1980 when the relaxation was given to them, and an order was made simultaneously absorbing them in the cadre of Assistant Engineers, also framing a rule at the same time under Article 309 providing for fixation of their seniority only from that date. Accordingly, there is no foundation for the claim that they could be treated at par with the direct recruits, regularly appointed prior to 26.2.1980. The admitted facts, which are the foundation of the claim of the writ petitioners, are sufficient to negative their claim. It is obvious that prior to the steps taken by the State Government on 26.2.1980 for their (66 of 94) [ SAW-589/2015] regularisation in this manner, there was no basis on which the writ petitioners could claim to be regularly appointed as Assistant Engineers; and, therefore, the manner in which they were regularised, including the mode of fixation of their seniority with effect from 26.2.1980, is decisive of the nature of their regular appointment. This alone is sufficient to negative their further claim. They can make no grievance to any part of that exercise, made only for their benefit.
The constitution bench in Maharashtra Engineers' case, while dealing with Narender Chadha, emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus :
"We, therefore, confirm the principle of counting towards seniority the period-of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.' The constitution bench having dealt with Narendra Chadha in this manner, to indicate the above principle, that decision can not be construed to apply to cases where the initial appointment was not according to rules.
We shall now deal with conclusions (A) and (B) of the constitution bench in the Maharashtra Engineers' case, quoted above.
There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) can not cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ,according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for (67 of 94) [ SAW-589/2015] considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop-gap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
The question therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A). In our opinion the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the rules' and the later expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to re-councile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, (68 of 94) [ SAW-589/2015] has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not- being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop- gap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A).
In view of the above, it is clear that the claim of the writ petitioners (respondents in all these appeals) for treating their entire period of 'service prior to 26.2.1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, by a committee of five Chief Engineers was resorted to on account of the emergency, cannot be accepted. Rule 11 of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only 'by advertisement and interview, (69 of 94) [ SAW-589/2015] through the Public Service Commission, West Bengal.' Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stop-gap arrangement for fixed period, as expressly stated in the appointment order itself. Thus, there is no escape from the conclusion that the present cases fall squarely within the ambit of the corollary in conclusion (A), of Maharashtra Engineers case and, therefore, the period of ad hoc service of writ petitioners (respondents) on the post of Assistant Engineer prior to 26.2.1980, cannot be counted for reckoning their seniority. Consequently, these appeals are allowed. The impugned judgments of the Division Bench of the High Court, are set aside, and those of the Single Bench dismissing the writ petitions are restored. No costs."
(iii) The Supreme Court in the case of Ch. Narayana Rao vs. Union of India (UOI) and Ors. 2010(10) SCC 247 has observed as under:
We have, accordingly, heard Mr. Sushil Kumar Jain and Mr. Puneet Jain, advocates for the appellant and Mr. B.S. Chahar, Senior Advocate with Mrs. B. Sunita Rao and Mr. Mohd. Mannan for respondents at length and perused the records.
13. The said question, as has been projected above, should not detain us long as the same has been considered in the matter of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. reported in MANU/SC/0291/1990 : (1990) 2 SCC 715 by a Constitution Bench of this Court. After eloquent discussion with regard to inter se seniority of direct recruits and promotees, the same has been summed up in para 47.
The relevant portion of the said para (70 of 94) [ SAW-589/2015] applicable to the facts of this Appeal is reproduced hereinbelow:
47. To sum up, we hold that:
(A)Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
14. On the strength of the aforesaid Constitution Bench Judgment, Mr. Sushil Kumar Jain strenuously submitted before us that Clause (B) thereof should be invoked for the purpose of grant of seniority to the Appellant.
15. We have minutely examined the same but are unable to accept the said contention as according to us corollary of Clause (A) of para 47 of the aforesaid judgment would be applicable to the Appellant's case. It cannot be disputed that the initial appointment of the Appellant was only ad-hoc and for a temporary period and was also not in accordance with the Rules of 1990 as he did not appear in the requisite test, which is conducted by Staff Selection Commission, before his appointment. The same was only a stop- gap arrangement. Therefore, his officiation on such a post cannot be taken into account for considering the seniority. Thus, in our considered opinion neither Clause (A) nor Clause (B)\1, as reproduced hereinabove, would be applicable to the Appellant's case and he cannot draw any advantages therefrom. On the other hand, (71 of 94) [ SAW-589/2015] he would be squarely covered by the corollary appended to Clause (A).
16. This judgment of Constitution Bench in Direct Recruit's case (supra) has been followed by three learned Judges of this Court in the case of State of West Bengal and Ors. v. Aghore Nath Dey and Ors. reported in (1993) 3 SCC 371, authored by most illustrious learned Judge of this Court
- Hon'ble Mr. Justice J.S. Verma (as he then was). After considering the scope and ratio decidendi of Direct Recruit's case (supra), it has been held in paras 24 and 25 in lucid and concise words as under:
"24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A). In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, (72 of 94) [ SAW-589/2015] without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)."
17. According to us, corollary appended to Clause (A) of Direct Recruit's case (supra) and the aforesaid judgment in Aghore Nath Dey's case squarely decide the issue.
18. Reliance has also been placed by Mr. Sushil Kumar Jain on yet another Constitution Bench Judgment of this Court reported in (2000) 8 SCC 25 titled Rudra Kumar Sain and Ors. v. Union of India and Ors. to distinguish the terminology used in the case of O.P. Singla and another etc. v. Union of India and Ors. reported in (1984) 4 SCC 450 namely, "Ad-hoc", "fortuitous" and "stop-gap". However, we are not required to consider the same as it has already been dealt with in Aghore Nath's case (supra) elaborately.
19. In Singla's case (supra), the question was with regard to seniority and promotion amongst direct recruits and promotees. The said question is not directly in issue in this case. To the same effect is yet another (73 of 94) [ SAW-589/2015] earlier judgment of this Court is reported in (1986) 2 SCC 157 titled Narender Chadha and Ors. v. Union of India and Ors., which also dealt only with the aforesaid requirement.
20. In Narender Chadha's Case, benefit was directed to be granted to those Appellants as they were working on the said posts for more than 15 to 20 years, which is not the case in the present appeal. Apart from the above, admittedly the Appellant had not cleared the requisite examination/proficiency test as required under the Rules of 1990, as soon as he cleared the examination/proficiency test, he was regularised on the post. His regularisation from the date of initial appointment was impermissible and was rightly denied to him.
21. The view which has been taken by us hereinabove finds favour from a recent judgment of this Court reported in (2009) 4 SCC 170 titled, Union of India v. Dharam Pal and Ors. Perusal of the said judgment shows that the cases on which we have placed reliance have also been fully relied upon by learned two Judges of this Court while dealing with the said case. Succinctly, it has been held in paragraph 25 and 27 as under:
25. It is, however, also well settled that where the initial appointment is only ad-
hoc, not according to rules and made as a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.
26. ... ... ...
27. When an ad-hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. (1990) 2 SCC 715, the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to (74 of 94) [ SAW-589/2015] say that an appointment is made on an ad- hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule.
22. We are, therefore, fortified in our reasoning as adopted in the aforesaid Appeal.
23. Thus, looking to the matter from all angles, we are of the considered view that no relief can be granted to the Appellant. His seniority has been correctly worked out only from the date he had passed the Stenography Test as contemplated under the Rules approved by Staff Selection Commission.
24. Thus, the appeal being devoid of any merit and substance is hereby dismissed but with no order to costs.
(iv) In the case of Secretary, Minor Irrigation Deptt.
and R.E.S. vs. Narendra Kumar Tripathi (07.04.2015 - SC), the Supreme Court has observed as under:
These appeals have been preferred against judgment and order dated 13th February, 2003 in Civil Miscellaneous Writ Petition No. 9940 of 2001 and dated 10th December, 2004 in Civil Miscellaneous Writ Petition No. 11542 of 2003 passed by the High Court of Judicature at Allahabad. Special Leave Petition (Civil) No. 18683 of 2004 has been filed by the Minor Irrigation Department of State of Uttar Pradesh ("the Department") and SLP (Civil) No. 8330 of 2005 has been filed by Narendra Kumar Tripathi ("the writ Petitioner") employed as engineer with the Department of Minor Irrigation, Rural Engineering in the State of Uttar Pradesh. In both the matters, the question involved is whether the writ Petitioner is entitled to count his service as Assistant Engineer from 12th June, 1985, the date of his initial appointment on an 'ad hoc' basis, for (75 of 94) [ SAW-589/2015] purposes of seniority or his service will be counted only from 14th December, 1989, the date on which approval to his appointment was given by the State Government under the provisions of the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 ("1979 Rules") as amended on 7th August, 1989 by the Uttar Pradesh Regularisation of Ad Hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 ("1989" Rules).
3. The writ Petitioner was first appointed as Work Engineer (Work Charge) on a fixed pay of Rs. 650/- on 18th January, 1983.
Later, vide Office Memo dated 12th June, 1985 issued by the Secretary, Government of Uttar Pradesh, Rural Development Section on the basis of recommendations of the Selection Committee, he was appointed on temporary post of Assistant Engineer in regular scale on ad hoc basis. The letter of appointment, inter alia, provided that the appointment was purely on ad hoc basis and his services could be terminated by notice or on availability of candidates duly selected through Public Service Commission and the appointee had no claim for regular appointment. The said appointment, however, continued and was followed by "Notification/Regularization" dated 14th December, 1989 as per the 1979 Rules as amended by 1989 Rules.
13. After giving due consideration to the rival submissions, we are of the view that the contention of the writ Petitioner has to be upheld. No doubt, ad hoc service, when appointment was against rules and purely as stop gap arrangement, cannot be counted for the purposes of seniority, as held by the larger Bench of the High Court and in several judgments of this Court, including in Keshav Chandra Joshi v. Union of India MANU/SC/0061/1991 : 1992 Supp. (1) SCC 272 but the present is not the case where the ad hoc service is purely by way of stop gap arrangement or against the rules.
(76 of 94) [ SAW-589/2015]
14. At this stage, observations of this Court in some of the leading judgments may be referred to. In Direct Recruit Class II Engineering Officers' Association, it was observed:
47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
15. In Aghore Nath Dey, the above observations were explained as follows:
25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being (77 of 94) [ SAW-589/2015] eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A).
16. In Rudra Kumar Sain and Ors. v. Union of India and Ors. MANU/SC/0522/2000 :
2000 (8) SCC 25, it was observed:
15. So far as the terminology used in Singla case 1984 (4) SCC 450], namely "ad hoc", "fortuitous" and "stopgap", the same is quite familiar in the service jurisprudence.
Mr. Rao, appearing for the High Court of Delhi however contended before us that the said terminology should be given the same meaning, as was given in Parshotam Lal (78 of 94) [ SAW-589/2015] Dhingra v. Union of India AIR 1958 SC 36 :
1958 SCR 828]. In Dhingra case the Court was examining whether removal of an employee can be held to be penal and whether Article 311(2) of the Constitution can at all be attracted and the Court also observed that certain amount of confusion arises because of the indiscriminate use of the words "provisional", "officiating" and "on probation". We do not think that the concept or meaning given to those terminology in Dhingra case will have any application to the case in hand, where the Court is trying to work-out an equitable remedy in a manner which will not disentitle an appointee, the benefit of his fairly long period of service for the purpose of seniority, even though he possesses the requisite qualification and even though his appointment has been made after due consultation and/or approval of the High Court.
16. The three terms "ad hoc", "stopgap"
and "fortuitous" are in frequent use in service jurisprudence. In the absence of definition of these terms in the Rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either Under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to be "fortuitous". In Black's Law Dictionary, the expression "fortuitous" means "occurring by chance", "a fortuitous event may be highly unfortunate". It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression "ad (79 of 94) [ SAW-589/2015] hoc" in Black's Law Dictionary, means "something which is formed for a particular purpose". The expression "stopgap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need".
17. In Oxford Dictionary, the word "ad hoc"
means for a particular purpose; specially. In the same dictionary, the word "fortuitous"
means happening by accident or chance rather than design.
18. In P. Ramanatha Aiyar's Law Lexicon (2nd Edn.) the word "ad hoc" is described as: "For particular purpose. Made, established, acting or concerned with a particular (sic) and or purpose." The meaning of word "fortuitous event" is given as "an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God".
19. The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as "ad hoc" or "stopgap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to (80 of 94) [ SAW-589/2015] any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "stopgap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre.
20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/stopgap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
17. The above principles are undisputed. Question of their application has arisen from time to time in different fact situations. Question to be decided in each case was whether the ad hoc appointment was stop gap and fortuitous as against being to an existing vacancy which continued and initial appointment was made after due selection without violating the rules, if any.
18. The scheme of the working of the Rules in the Department shows that right from 1979, the Department has been making (81 of 94) [ SAW-589/2015] direct recruitment after due selection and by applying the 1979 Rules which rules have been extended from time to time to subsequent recruitments, services were regularized. Validity of the scheme of these recruitments is not under challenge. In such circumstances, when the rules provide that such ad hoc appointments have to be regularized and seniority counted from the date of appointment, the writ Petitioner could not be deprived of the past service rendered by him from 12th June, 1985 till the date of regularization. It is not a case of appointments made without due selection or without vacancy or without qualification or in violation of rules. The larger Bench failed to observe that the appointment of the writ Petitioner was not dehors the rules nor by way of stop gap arrangement. The rules had the effect of treating the appointment as a regular appointment from initial date of appointment. In these circumstances, the principle laid down in K.C. Joshi was not applicable. It is not a case where service rendered is either fortuitous or against rules or by way of stop gap arrangement. Applying the principle laid down in Direct Recruit Class II Engineering Officers' Association, the writ Petitioner is entitled to count service from 12th June, 1985. Moreover, the department has allowed the benefit of past service to other similarly placed incumbents as observed in the judgment giving rise to the appeal of the department.
19. Accordingly, we are unable to approve the view taken by the larger Bench to the extent it proceeds on the assumption that past service of the writ Petitioner was by way of stop gap arrangement or contrary to the rules.
20. We, therefore, direct the State to redetermine the seniority after hearing the affected parties within six months. It is made clear that benefit of redetermination of seniority at this stage will not disturb holding of posts by any incumbent and except for benefit in pension other benefits to which the writ Petitioner may be found entitled will be given only on notional basis.
(82 of 94) [ SAW-589/2015]
21. The appeal of the writ Petitioner is accordingly allowed to the above extent and appeal of the State is accordingly dismissed."
25. Mr. Jindal has argued for issue No.(iii) and contended that para 16 of the judgment of Supreme court in the case of Jagdish Narayan Chaturvedi (Supra) clearly establishes that the benefits already given cannot be withdrawn which reads as under:
"16. There is another hurdle in the way of the writ petitioners. When the order of regularisation was passed, according to learned counsel for the respondent-writ petitioners 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 respondent-writ petitioners could have challenged when the order of regularisation was passed. There was no challenge to the order of regularisation and benefits therefrom and there was no challenge to the order of regularisation in any of the cases. If the plea of the respondent-writ petitioners is accepted it would mean that in their cases the regularisation 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."
26. Mr. Dhand has relied upon the decision of Bombay High Court in the case of The State of Maharashtra and Ors. vs. Meena A. Kuwalekar & Ors. in Writ Petition No.9051/2013 (83 of 94) [ SAW-589/2015] decided on 28.04.2016 along with other connected writ petitions wherein it has been observed as under:
42. In case of Punjab State Electricity Board & Ors. v. Jagjiwan Ram & Ors. (supra), the employees were engaged as work charged employees and the issue was whether the services rendered by them as work charged employees can at all be taken into consideration for grant of benefits of TBPS to such employees. In this regard, the Hon'ble Supreme Court observed that generally speaking, work charged establishment is an establishment of which expenses are chargeable to works. The pay and allowances of such employees who are engaged on a work charged establishment are usually shown under a specified special head of estimated cost of works. The work charged employees are engaged for a specified work or a project and their engagement comes to an end on completion of the work or project. The source and mode of engagement / recruitment of work charged employees, their pay, and conditions of employment are altogether different from persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Acts or the Rules and their duties and responsibilities are also substantially different than those of regular employees. The Hon'ble Supreme Court, upon reference to several decisions, at paragraph 14 has held that the ratio of such judgments is that work charged employees constitute a distinct class and they cannot be equated with any other category or class of employees much less regular employees and further that the work charged employees are not entitled to service benefits which are admissible to regular employees under the relevant Rules or the policy framed by the employer. Taking cognizance of such factual position, the Hon'ble Supreme Court turned down the plea of the employees that the services rendered by them as work charged employees be taken into consideration for purposes of award of benefits under TBPS.
(84 of 94) [ SAW-589/2015]
43. Again, in the present cases the respondent - employees were admittedly not appointed as work charged employees or against work charged establishment. Rather, the respondent - employees, as noted earlier, were appointed against clear, permanent, substantive and sanctioned vacancies. Right from the date of their respective appointment there was no difference in the service conditions made applicable to the respondent - employees and other employees. In such circumstances, the decision in the case of Punjab State Electricity Board & Ors. v. Jagjiwan Ram & Ors. (supra) is not attracted to the facts and circumstances of the present cases.
47. In terms of the decisions of the Hon'ble Supreme Court in State of M.P. and Ors. v. Lalit Kumar Verma MANU/SC/8717/2006 :
(2007) 1 SCC (L& S) 405, and Secretary, State of Karnataka v. Umadevi (3) MANU/SC/1918/2006 : (2006) 4 SCC 1, there is no scope for regarding the service rendered by the respondent - employees prior to 1 December 1994 as illegal. This is precisely the reason which prompted the State Government to regularise such services vide GR dated 1 December 1994.
As noted earlier, the services of the respondent - employees right from the dates of their initial appointments has been taken into consideration for several service benefits like regular pay scale, increment, pension etc. The very engagement of the respondent - employees was not on daily wage basis or work charged basis or purely on ad hoc basis de hors the recruitment rules. In fact, the appointments, though temporary, were against clear, permanent, substantive and sanctioned vacancies. The names of such employees were sponsored by employment exchanges or other recognised recruitment agencies. The selection process was also fair, transparent and above board. The GR dated 1 December 1994 inter alia sets out the circumstances in which such appointments came to be made and records that denial of regularisation might result in discrimination. The State Government has taken full benefit of such appointments and further, even directed that (85 of 94) [ SAW-589/2015] the services of such employees should be treated as regularised. The State Government failed to involve the MPSC at the stage of making initial appointments. There is not even any allegation that the respondent - employees were in any manner responsible for this situation. The State Government, in such a situation, cannot be permitted to take advantage of its own failure to follow the procedural requirements. In these peculiar facts and circumstances, the maxim nullus commodum capere potest de injuria sua propria, meaning 'no man can take advantage of his own wrong', squarely applies. In Broom's Legal Maxim (10th Edn.) at p.191, it is stated:
".... it is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure"
48. In Pratap Kishore Panda v. Agni Charan Das MANU/SC/1205/2015 : 2016 (2) ALL MR 461 (S.C.), the issue arose as to whether the grant of benefit of regularisation to employees who were recruited without involving Orissa Public Service Commission (OPSC) was legal and valid, considering in particular, the decision of the Constitution Bench in Secretary, State of Karnataka v. Umadevi MANU/SC/1918/2006 : (2006) 4 SCC 1, the Hon'ble Supreme Court after adverting to the fact situation ruled that such regularisation from the date of initial appointment was legal and valid, particularly since the recruitment made was neither capricious nor arbitrary, even though, the OPSC was not involved in the recruitment process. The Hon'ble Supreme Court observed that this was not a case of ad hoc employees being selected in a whimsical, inconsistent or haphazard manner or in order to favour some individuals. The incumbents were sponsored by employment exchange and over 400 candidates were (86 of 94) [ SAW-589/2015] found suitable by duly constituted selection committee which interviewed them. It was not a relaxation of the rules in order to favour a few, but was the consequence of following an alternate method of selection intended to remedy a malady in the recruitment of SC/ST candidates. The sponsorship of employment exchange and subsequent interview by a duly constituted selection committee was itself a valid alternate for recruitment by way of OPSC competitive examination. For this purpose, the Hon'ble Supreme Court also made reference to the provisions contained in Article 320(4) of the Constitution of India and Section 9 (4) of O.R.V. Act. In this batch of petitions also, we are concerned with the appointment of respondents employees appointed to permanent, clear, substantive and sanctioned vacancies, though on temporary basis consequent upon sponsorship of their names by employment exchange and in pursuance of selection process which was fair, transparent and above board. Such respondent - employees, right from the date of their initial appointment have been extended benefits of regular pay scale, increments, leave, transfer, GPF etc. The services of such respondent - employees from the date of their initial appointment has been taken into consideration for practically all purposes, including pensionary benefits (except perhaps seniority).
49. The decisions rendered by this Court in Nanda Chavan (supra) and Smt. Sushma Kumar Arya (supra), as of today hold the field. In terms of these decisions, services of employees placed in virtually identical position as compared to respondent - employees from the date of their initial appointments, have been taken into consideration for the grant of benefits under TBPS and ACPS. The decisions of the co- ordinate benches of this Court bind us. The State Government in some cases has extended some benefit to its employees on its own. In other cases, the State Government has extended such benefit in pursuance of orders made by MAT and this Court. The State Government has been selective in matters of extension of such (87 of 94) [ SAW-589/2015] benefits and further in the matter of challenging the orders made by MAT and this Court in virtually identical matters. The peculiar expressions used by the State Government in its GR dated 1 December 1994, also render the view expressed by MAT as well as co-ordinate benches of this Court, a plausible view. This is not a case where respondent - employees were either appointed on purely ad hoc basis de hors the recruitment rules or in some whimsical, inconsistent or haphazard manner. This is also not a case where respondent
-employees were appointed on work charged basis or as daily wagers. Rather, this is a case where respondent - employees, though appointed on temporary basis, were so appointed against permanent, clear, substantive and sanctioned vacancies. The services of such respondent - employees, right from the date of their initial appointment has been taken into consideration by the State Government practically for all purposes except perhaps seniority. In so far as non consideration of service prior to 1 December 1994 for purposes of seniority is concerned, the GR dated 1 December 1994 has made specific provisions. However, there are no specific provisions in the GR dated 1 December 1994 with regard to taking into consideration such services for other purposes. The practice indicates that such services has been taken into consideration practically for all purposes except determination of seniority. The GR dated 1 December 1994 directs that the services 'should be treated as regularised'. The use of the past tense as well as legal fiction employed, also suggests that the intention was always to treat such past services as regular for all purposes except perhaps in the matter of determination of seniority for which special provisions were made. Upon cumulative consideration of all such factors, including the selective approach being adopted by the State Government, we are satisfied that these are not fit cases to exercise our extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India."
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27. We have heard counsels for both the sides.
28. Taking into consideration the fact that all the employees who were not appointed through regular channel of recruitment, were accorded regularization. Therefore, the crucial question which comes up for consideration is as to what is the date of entry in the cadre. In our considered opinion, if we take the first view which is canvassed by the employees it would amount to gross violation of Article 14 of the Constitution in as much as it was without public advertisement and contrary to the public interest also. Therefore, the Government decision to help employees may not be carried further.
29. With a view to help the employees and to take a sympathetic view the Government came out with the scheme of regularization, therefore, it will not be appropriate for us to deprecate that practice after about two decades. Considering the judgment of Supreme Court in the case of Jagdish Narayan Chaturvedi (Supra) where the Supreme Court has clearly held that the ad-hoc employee has no right to the post and ad-hoc appointment shall not be considered for the purpose of seniority;
the issue is no more res integra.
30. The second judgment sought to be relied by the learned Single Judge has followed the view taken by the other two Benches of the Principal Seat and in none of the judgments referred hereinabove para 10 of the Supreme Court Judgment, in case of Jagdish Narain Chaturvedi which is crucial, has not been discussed. Para 10 of the Supreme court judgment (supra) leaves (89 of 94) [ SAW-589/2015] no room for any other interpretation. Even amended Rule 27A also refers to regular recruitment for the purpose of conversion into permanent post.
31. At this stage, it will be relevant to consider the text of para 10 of the judgment in the case of Jagdish Narain Chaturvedi (supra), which reads thus:
"10. Rule 25(4) relates to prospective appointment as is clear from the expression `occurrence'. Therefore, the starting point has to be as noted above, when the employee is born in the cadre, as observed by this Court in Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan : [2003]2SCR112 , Santosh Kumar and Ors. v. G.R. Chawla and Ors. : AIR2003SC3304 and A.G. Sainath Reddy v. Govt. of A.P. and 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."
32. In the case of Surendra Mohnot & Ors. (supra), reiterating the view in the case of Jagdish Narain Chaturvedi (supra) and on a survey of earlier opinions, the Apex Court of the land in no uncertain terms held that stagnation benefits were given from the date of regularization in the backdrop of the Government orders dated 25th January, 1992 and 17th February, 1998, relying upon the opinion in the case of State of Haryana Versus Haryana Veterinary and AHTS Association and Anr.: (2008) 8 SCC 4. The Supreme Court also took specific note of the language employed in the circulars employing words "appointment relatable to the existing cadre/service". The Apex Court of the land further held that a candidate is required to satisfy four conditions, (90 of 94) [ SAW-589/2015] while claiming regular appointment, namely;
(a) appointment must be a substantive capacity;
(b) to a post in service i.e. in a substantive vacancy;
(c) appointment must be according to the rules; and
(d) within the quota prescribed for the source.
33. For ad-hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions of the statutory recruitment rules for regular appointment. Hence, despite the word "regular" was not used in para 3 of the Government order dated 25th January, 1992, but would obviously contemplate a need for "regular" appointment in accordance with the statutory recruitment rules. The Supreme Court further observed that what was implicit in the Government order dated 25th January, 1992, was made explicit by clarification dated 3rd April, 1993, and was incorporated in para 3 of the Government order dated 17th February, 1998.
34. In the case of Surendra Mohnot & Ors. (supra), the Supreme Court, in no uncertain terms, also held that "there can be no estoppel against law". It will be relevant to consider the text of para 17 of the judgment aforesaid, which read thus:
"17. It is well settled in law that there can be no estoppel against law. Consent given in a court that a controversy is covered by a judgment which has no applicability whatsoever and pertains to a different field, cannot estop the party from raising the point that the same was erroneously cited."
(91 of 94) [ SAW-589/2015]
35. In the case of Rajasthan State Industrial Development and Investment Corporation Versus Subhash Sindhi Cooperative Housing Society, Jaipur & Ors., the Apex Court of the land again examined somewhat similar controversy as to "estoppel against the law", observing thus:
"34. Be that as it may, there can be no estoppel against the law or public policy. The State and statutory authorities are not bound by their previous erroneous understanding or interpretation of law. Statutory authorities or legislature cannot be asked to act in contravention of law.
"13. .... 'The statutory body cannot be estopped from denying that it has entered into a contract which was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do."
Even an offer or concession made by the public authority can always be withdrawn in public interest. (Vide: State of Madras and Anr. v. K.M. Rajagopalan:
AIR 1955 SC 817; Badri Prasad and Ors. v. Nagarmal and Ors.: AIR 1959 SC 559; and Dr. H.S. Rikhy etc. v. The New Delhi Municipal Committee: AIR 1962 SC
554). In Surajmull Nagoremull v. Triton Insurance Co.
Ltd.: AIR 1925 PC 83, it was held as under:
"... No court can enforce as valid, that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties or by a failure to plead or to argue the point at the outset..."
(92 of 94) [ SAW-589/2015] A similar view was re-iterated by the Privy Council in Shiba Prasad Singh v. Srish Chandra Nandi : AIR 1949 PC 297."
36. In our considered opinion, where the rules which are pari-materia for the State of Rajasthan, the Supreme Court has held that the ad-hoc period cannot be allowed to be considered for the benefits of 9, 18 & 27 years. Therefore, para 16 of the judgment of Supreme court in the case of State of Rajasthan vs. Surendra Mohnot & Ors. (supra), as reproduced above is binding for this Court and is required to be accepted. Accordingly, the questions referred to us are answered thus:
37. QUESTION A For the reasons and discussions aforesaid and in view of the law declared by the Supreme Court in the case of Jagdish Narain Chaturvedi and Surendra Mahnot & Ors. (supra); we are of the opinion that the respondent - employee would stand regularized from the date of regularization in service and not prior to that.
38. QUESTION B Taking into consideration the recent decision, prior to two decades the regularization period was not questioned by anybody, therefore, in a writ petition filed by the petitioner it will not be appropriate for us to allow the Government to end the regularization. However, regularization will be from the date of regularization done by the department and not prior thereto.
(93 of 94) [ SAW-589/2015]
39. QUESTION C The contention of the counsel for the employees is required to be accepted and it cannot be annulled unless it has been annulled by appropriate authority. However, the benefits shall not be withdrawn but in future when the benefits are to be accorded for further promotion, the same will be considered on the basis of new law declared by the Supreme Court i.e. period will be considered from the date of regularization. When the future benefit of 9, 18 and/or 27 will be considered their ad-hoc service will not be considered for the purpose of benefit of 9, 18 and/or 27 years. But if benefit has already been granted for all the three scales; the same shall not be withdrawn and no recovery will be made from the employees.
40. QUESTION D In view of our answer in above matters, it is very clear that for the purpose of regularisation the date of regularisation will be from the date of regular appointment.
In that view of the matter, there cannot be two dates for the purpose of seniority and the other benefits. However, earlier services will be considered for the purpose of the same if there is a shortage in pensionary benefits.
41. QUESTION E In view of the observations made by the Supreme Court, as referred to above, the ad-hocism will not be considered for seniority. In that view of the matter, there will be only one (94 of 94) [ SAW-589/2015] date for regularization, date of regularizing ad-hoc period will not have any effect on seniority. In our considered opinion, the Division Bench of this Court in the case of State of Rajasthan & Ors. vs. Gopa Ram in DB Civil Special Appeal No.44/2016, decided on 18.04.2016 had no right to distinguish the judgment of the Supreme Court in the case of Jagdish Narayan Chaturvedi (Supra) and State of Rajasthan vs. Surendra Mohnot & Ors.
(supra). Thus, the decision of State of Rajasthan & Ors. vs. Gopa Ram (supra) did not lay down correct law. The correct law would be the law declared by the Supreme Court in the two judgments referred hereinabove.
42. In view of above discussion, we answer the questions accordingly. The matter may be placed before the Division Bench on 07.07.2017.
(VIJAY KUMAR VYAS),J. (VEERENDR SINGH SIRADHANA),J. (K.S. JHAVERI),J.
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