Allahabad High Court
Dr. Jitendra Pratap Singh And 58 Ors. vs State Of U.P.Through Its Chief Secy. ... on 23 March, 2017
Bench: Narayan Shukla, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved 1. Case :- SERVICE BENCH No. - 709 of 2004 Petitioner :- Dr. Jitendra Pratap Singh And 58 Ors. Respondent :- State Of U.P.Through Its Chief Secy. U.P.Govt.Lko.And 3ors. Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C 2. Case :- SERVICE BENCH No. - 1639 of 2013 Petitioner :- Dr. Raj Kumar Sachan And 32 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Medical & Health Lucknow & Ors. Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 3. Case :- SERVICE BENCH No. - 431 of 2014 Petitioner :- Smt. Asha Lata Biswas Respondent :- State Of U.P. Through Prin. Secy. Medical Health & Family We Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 4. Case :- SERVICE BENCH No. - 1044 of 2014 Petitioner :- Dr. Nisar Ahmad & 11 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & Or Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 5. Case :- SERVICE BENCH No. - 1083 of 2014 Petitioner :- Dr. Subhash Chandra Jain & 9 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & Or Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 6. Case :- SERVICE BENCH No. - 1302 of 2014 Petitioner :- Dr. Sharad Chandra Nigam & 4 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & An Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 7. Case :- SERVICE BENCH No. - 1309 of 2014 Petitioner :- Dr. Sada Nand Banerjee & 9 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & An Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 8. Case :- SERVICE BENCH No. - 1445 of 2014 Petitioner :- Dr. Sarva Daman Mishra Respondent :- State Of U.P.Throu.Prin.Secy.Medical And Health Lko.& Anr. Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 9. Case :- SERVICE BENCH No. - 1679 of 2014 Petitioner :- Dr. Ram Ujagir Pandey & 5 Others Respondent :- State Of U.P. Through Prin. Secy. Medical & Health U.P. & Anr Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 10. Case :- SERVICE BENCH No. - 1710 of 2014 Petitioner :- Dr. Subodh Kumar Gupta Respondent :- State Of U.P.Through The Principal Secy. Medical Health & Ors. Counsel for Petitioner :- Amol Kumar Counsel for Respondent :- C.S.C. 11. Case :- SERVICE BENCH No. - 1839 of 2014 Petitioner :- Dr. Suresh Chandra Verma Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & An Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 12. Case :- SERVICE BENCH No. - 9 of 2015 Petitioner :- Dr. Ram Chandra Gupta & 46 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & Or Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 13. Case :- SERVICE BENCH No. - 94 of 2015 Petitioner :- Dr. Nagendra Nath Purwar & 12 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & Oo Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 14. Case :- SERVICE BENCH No. - 927 of 2015 Petitioner :- Dr. Vishnu Prasad Gupta & 4 Ors. Respondent :- State Of U.P. Through Prin. Secy. Medical & Health Lko. & An Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 15. Case :- SERVICE BENCH No. - 1963 of 2015 Petitioner :- Dr. Buragadda Hanuman Prasad Rao Respondent :- State Of U.P. Thru Prin.Secy.Medical & Health Lko. & Anr. Counsel for Petitioner :- Hari Parsad Gupta Counsel for Respondent :- C.S.C. 16. Case :- SERVICE BENCH No. - 7245 of 2016 Petitioner :- Dr. Bijitendra Ganguli And 2 Ors. Respondent :- State Of U.P.Thru Prin.Secy.Medical & Health Lucknow & Anr. Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. 17. Case :- SERVICE BENCH No. - 12067 of 2016 Petitioner :- Dr. Aditya Kumar Garg Respondent :- State Of U.P. Thru Prin.Secy.Medical & Health Lko. & Anr. Counsel for Petitioner :- Hari Prasad Gupta Counsel for Respondent :- C.S.C. Hon'ble Shri Narayan Shukla,J.
Hon'ble Sheo Kumar Singh-I,J.
(Delivered by Sheo Kumar Singh-I, J.)
1. By means of the aforesaid writ petitions filed under Article 226 of the Constitution of India, the petitioners have claimed almost similar reliefs in all the writ petitions. The reliefs claimed in one of such writ petition bearing Writ Petition No.1639 (SB) of 2014 are as under:-
I. Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to promote and provide the position with all the incidental and consequential benefits including arrears of the salary to the petitioners at par with their juniors, as per direction of the Hon'ble Supreme Court of India as they have already given to some medical officers.
II. Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to fix and revise the pay-scale of the petitioners as per rules and pay the arrears of the salary as well as of the pension with interest at market rate.
III. Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to provide the selection grade for the post Joint Director in the pay scale of Rs.4500-5700 as Government Order dated 29.12.1997 as the same benefits have been given to other similarly situated persons.
IV. Issue a writ, order or direction in the nature of mandamus directing the opposite parties to revise and fix the pension of the petitioners after counting the NPA at the rate 25% as per recommendation of the 6th pay commission and pay the arrears and regular pension with interest.
Since common reliefs have been claimed in all the aforesaid writ petition as such they are being decided by a common order.
2. This is 13th round of litigation relating to regularization, seniority, promotion and getting of consequential benefits by the petitioners who were from the medical services in the State of U.P. All the petitioners have retired from service. Perusal of the record reveals that prior to 1945, there were two medical services in the State of U.P. - the Provincial Medical Services (PMS) and the Provincial Subordinate Medical Services (PSMS). On June 14, 1945 the Government of U.P. framed rules known as 'The United Provinces Medical Service (Men's Branch) Rules, 1945'. In 1946, two new medical services were constituted, namely, PMS Grade I and PMS Grade II and on 2nd November, 1964 PMS Grade I and Grade II were merged with effect from 1st November 1964. However, there were no rules for fixing inter-se seniority of the officers of the two services which were so merged. The issue of the inter-se seniority between the members of the new service as merged i.e. between PMS I and PMS II, was taken up in State of U.P. v. M.J. Siddiqui reported in 1980(3) SCC 174. The recruitment to the new PMS was done by the State Government by way of a stop gap arrangement. Procedure for direct recruitment is provided under Section 12 of the said Rules, which is reproduced as under:-
"12. Application for direct recruitment - Selection of candidates for direct recruitment shall be made in consultation with the Commission, who, when called upon to do so, shall invite applications, in such form as may be prescribed from time to time.
13. Interview - (1) The Commission will scrutinize the applications received by them and require so many candidates qualified for appointment under these rules as seen to them desirable to appear before them for interview at their own expenses.
(2) No candidate shall be admitted to the interview unless he holds a certificate of admission granted by the Commission.
(3) The Commission shall draw up a list of such candidates as it considers suitable for appointment in order of preference and shall forward it to the Government.
(4) Subject to the provisions of Rules 6 and 16 (2) the Governor shall appoint as vacancies occur the candidates who stand highest in order of preference in the list prepared by the Commission under sub-rule (3) provided that he satisfied that they are duly qualified in other respects."
3. In 1964 a new PMS was constituted in U.P. by making the medical service rules. A government order was issued on 20.02.1965 prescribing eligibility criteria and later on some officers were selected by the Departmental Selection Committee (DSC) and were issued temporary appointments by the Government Order. In 1968, the Government requested the Public Service Commission for recruiting doctors to PMS and the Commission prepared a select list in 1972 for recruitment. Meanwhile in 1973 a new cadre of PMHS was formed by merging PMS with PMHS. Prior to the merger i.e. between 1968 to 1973, some doctors were also appointed temporarily against substantive vacancies after selection by Departmental Selection Committee. The record of the litigation reveals that temporary appointment letters were issued to some of the selectees not on the basis of select list but after selection by Departmental Selection Committee. The U.P. Government held 1972 select list to be defective. Therefore, the period of ad-hoc appointment was further extended and some more persons were appointed on temporary basis and later on U.P. Public Service Commission sent three select lists in 1977, 1978 and 1979 for recruitment to the post of Medical Officers but the appointment letters were not issued. The record reveals that during the period 1968 - 1979 there were three groups of qualified persons:
1. Those given temporary appointment and who had also been selected by Public Service Commission;
2. Those given temporary appointment but were not selected by Public Service Commission, and
3. Those who were selected by Public Service Commission without being temporarily appointed earlier.
4. Thereafter, the UP Regulation of Ad hoc Appointments (On posts within the purview of UP Public Service Commission) Rules, 1979, were framed. In terms of Rule 7, the doctors who had been appointed temporarily were sought to be regularized and letters of appointment were issued to them whereby they were treated as having joined the services with effect from the date of those appointment letters.
Section 7 of the aforesaid rules provides as under:-
"Saving (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall in all cases, be placed below the persons appointed in accordance with the relevant service rules or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.
(2) If two or more persons are appointed together, their seniority inter se shall be determined to the undermentioned in the order of appointment."
5. In terms of the 1979 Rules the 'ad hoc appointees' could not count their services which they may have rendered earlier as temporary appointees. Thus the doctors who had been appointed temporarily upto1976 were sought to be regularized under the 1979 Rules and letters of appointment were issued to them, after a period of 'probation', whereby they were treated as having joined the service with effect from the date of these appointment letters. A seniority list was published in 1983 in which the candidates who had been recommended by the PSC for appointment in 1972 were placed at the top followed by all the 'temporary appointees' like the writ petitioners although almost all of them had been appointed at least temporarily much prior to the 1972 selectees who had not been issued regular appointment letters at all.
6. In the meantime, the State Government cancelled the selected list for the years 1977, 1978 and 1979 on 13.03.1984. A petition was filed before the Court known as Mathur's case and the Court noted that the ad-hoc appointees had been appointed and selected temporarily pursuant to Notification for filling up of posts and in consultation with the U.P. Public Service Commission, they had requisite qualification and were appointed against substantive vacancies and the Court also held that the candidates could not be treated as having been appointed on ad-hoc basis and that 1979 rules did not apply to them. Consequently their seniority was not to be fixed from the date of their regularization under the 1979 rules but from the date of their initial appointment in PMS cadre.
7. Dr. Chandra Prakash filed a writ petition before Hon'ble the Apex Court and the Court in the case of Dr. Chandra Prakash and others v. State of U.P. and others reported in (2002) 10 SCC 710 held as follows:-
"Since both the orders in Tandon's case have been set aside, the seniority as determined by those orders can no longer be relied upon. The disposal of the Interlocutory Applications filed by those who had obtained orders from the High Court following Mathur's case, by the order dated 26th July, 1976 cannot also stand, since both that order as well as the order dated 23rd March 1995 in Tandon's case were held by the Constitution Bench to be "not good law". By the same token, since the 1996 seniority list was prepared on the basis of the Supreme Court's decisions in Tandon's case cannot be held to have been validly prepared. This leaves the field with only the principles as determined in Mathur's case. As long as a decision stands, it has to be followed unless the Court has reason to differ with the view expressed. In such event, the Court must refer the issue to a larger Bench. This principle is however not applicable if the earlier decision has concluded issues in a particular set of facts in a given lis between the same parties. Such a decision cannot be reopened on the principles of res judicata except by way of an application for review.................................... Besides the decision in Mathur's case has been followed consistently in a large number of cases since its pronouncement by the High Court in 1991 and by the Supreme Court in 1992. Special leave petitions from those decisions have also been dismissed by the Supreme Court. It would not be proper in these circumstances to upset the principles and introduce further uncertainty in an already chaotic situation particularly when the matter involves the question of service conditions of Government employees."
8. The State of U.P. filed Civil Appeal No.4438 of 1995 [State of U.P. and others v. Dr. R.K. Tandon and others reported in (1995) 3 SCC 616] and the Court considering the point in issue regarding seniority of ad-hoc appointment held as follows:-
"4. It is settled law that all ad hoc appointments made de hors the rules do not confer any right to primacy or seniority. They acquire the rights only from the date of their regular appointment according to rules. If, however, the initial appointments are according to rules, though on ad hoc or temporary basis, then the seniority would be counted from the dates of initial appointment. The ad hoc appointments here were dehors the rules. It would thus be clear that though the doctors have put in more than 33 years, they are ad hoc hands. All would not get seniority from the respective dates of appointments. It is seen that some of the doctors have retired and some had the benefit of direction given by the court to regularise their services with effect from the dates on which they were appointed and the orders have become final. So, they are entitled to count their seniority from the respective dates of initial appointments.
5. From among the rest of the doctors, since the PSC had notified, selected and recommended the names of candidates in the year 1972, State Government is directed to make their appointment in the order of merit determined by the PSC. The State Government is directed to appoint them with effect from the date on which the State Government had received the merit list from the PSC and they be placed below the candidates whose appointments were upheld by the Courts or Service Tribunal and became final.
6. As to the candidates whose names were recommended by the PSC in three installments -first on 23.12.77 second on 16.6.73 and the final list on 10.5.79, the State Government is directed to appoint them in the order of merit in the respective lists. The seniority of the officers so appointed would be as per the determination of the PSC in the respective list. They would be appointed with effect from the dates on which the State Government had received the respective lists and they must be deemed to have been regularly appointed from those dates. They would be placed below 1972 selectees. Rest of the candidates who were not selected but are still continuing in service, would be placed below the last of the 3rd list and their seniority is directed to be determined with effect from the date of the receipt of the list dated 10.5.79. Among the non-selectees, the date on which the list dated May 10, 1979 was received by the State Government would be the cutoff date and taking into consideration of the respective dates of appointments as on that date and if made thereafter, seniority will be counted from those respective dates. Rule of reservation, if applied, and the candidates were selected accordingly their seniority vis-a-vis the general candidates would be according to the roster maintained by the State Government.
7. It is on record that some of these ad hoc doctors have retired on attaining the age of superannuation. In respect of them, there shall be a direction to notionally treat them to be regularly appointed from respective dates of initial appointment only for the purpose of giving them pensionary and retrial benefits admissible according to relevant rules. This should not be reckoned for inter se seniority among the temporary or ad hoc doctors appointed in the service."
9. The third litigation was filed by Dr. Chandra Prakash and vide order dated 04.02.1999, the State of U.P. was directed to issue a notice in two daily newspapers, Amar Ujala in Hindi and The Times of India, Lucknow Edition, in English, with the direction that those whose seniority is likely to be affected are entitled to come before the Apex Court to put forward their point of view including all those persons who are governed by earlier Court's order and the case [Dr. Chandra Prakash and others v. State of U.P. another reported in (2002) 4 SCC 234] was finally decided on 04.02.2002 with the following observation:-
"...that temporary appointees cannot claim seniority from the date of their initial appointment but can count the same only from the date of their regularization under Rule 7 of the Regularization Rules...................A pronouncement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or similar number of judges...........Therefore, it is held that the judgment of the two Judge Bench in Dr. R.K. Tandon Case (1995) 3 SCC 616 as modified by another two Judge Bench in Dr. R.K. Tandon Case (1996) 10 SCC 247 does not lay down the correct law, being in conflict with the larger Bench judgment."
10. It is noteworthy that the petitioners are claiming the benefit as per direction given in Tandon's case but the Hon'ble Court held that Tandon's case does not lay down the correct law. It was held in the case of Chandra Prakash and others v. State of U.P. and others (2002) 4 SCC 234 at Page No.240 that all ad-hoc appointments made dehors the rules do not confer any right to permanency or seniority. They acquire the rights only from the date of their regular appointment according to rules. Hon'ble Court has concluded in Paragraph 26 as follows:-
"For the reasons stated above, we hold that the judgments of this Court dated 23.03.1995 and 26.07.1996 delivered by a two Judge Bench in Case Nos.4438-42 of 1995 do not reflect the correct declaration of law, being in conflict with the judgment of the three Judge Bench dated 24.11.1992 in SLP No.13840 of 1992, we, further, direct that these petitions shall not be listed for disposal before a bench of three learned Judges. Ordered accordingly."
11. Dr. J.P. Gupta approached this Court by filing Writ Petition No.4 (SB) of 2004 (Dr. J.P. Gupta v. State of U.P. and others) with the grievance that in view of the judgment of Hon'ble the Supreme Court the seniority of doctors had been re-fixed but the consequential benefits have not been provided. The writ petition was finally disposed of with a direction to grant consequential benefits including notional promotion to the petitioner and all similarly situated persons.
12. Thereafter, Dr. Raghubeer Prasad Dixit and others filed Writ Petition No.1543 (SB) of 2004 with the similar relief which was disposed of by this Court vide order dated 18.09.2007 with the observation that since the State Government has already finalized the seniority list in pursuance of the judgment and order passed by Hon'ble the Supreme Court, we dispose of the writ petition with a direction to the opposite party no.1 to grant all consequential benefits including notional promotion etc. to the petitioners within stipulated time.
13. Another writ petition bearing Writ Petition No.1591 (SB) of 2008 (State of U.P. and another v. Dr. B.B.S. Rathore and another) was filed and was decided by this Court vide order dated 24.10.2008 with the following observations:-
"The writ petition is devoid of merit and is dismissed with exemplary costs which is quantified to Rs.1,00,000/- which may be recovered from the persons who are at fault in depriving the claimant respondent No.1 from his service benefits. Let the costs be deposited within a period of two months from today in this Court. The claimant respondent No.1 shall be entitled to withdraw an amount of Rs.75,000/- and 25,000/- shall be remitted to mediation centre of the High Court. The Registry of this Court to take follow up action. Copy of this order be sent to the Chief Secretary of the Government of U.P. and the Principal Secretary Medical & Health Services, Government of U.P. for compliance forthwith. A copy of the judgment shall also be sent to the Principal Secretary, Law Department.
Accordingly, subject to above, the writ petition is dismissed in limine."
14. Dr. Virendra Singh Pachahara and others approached this Court by filing Writ Petition No.1461 (SB) of 2009 for payment of dues from the date of notional promotion and the petition was allowed vide order dated 15.07.2013 and the State Government was directed to provide promotion and pay scale and promotional avenues in the light of order passed by Hon'ble Supreme Court in the case of Dr. Chandra Prakash.
15. Thereafter, State of U.P. and others preferred an appeal bearing Civil Appeal No.3041 of 2010 (State of U.P. and others v. B.B.S. Rathore) before Hon'ble the Apex Court against the order dated 24.10.2008, referred above, and the Hon'ble Apex Court passed an order mentioning therein that it had stayed levy of cost of Rs.1,00,000/- on 01.04.2010 with further direction that if the appellants succeed, they will be entitled to recover the amount paid in pursuance of the order of the High Court. Civil Appeal No.3041 of 2010 (State of U.P. and others v. Dr. B.B.S. Rathore) was finally decided by Hon'ble the Apex Court vide order dated 24.07.2014 by holding as under:-
"we are of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of "no work no pay" in case of retrospective promotion."
16. Consequently, the appeal was allowed and the order of the High Court dated 17.05.2000 and the order passed by the Central Administrative Tribunal were set-aside.
17. Learned counsel for the State has submitted that before proceeding to the relief clause as prayed by the petitioners it is necessary to examine the rules relating to ad-hoc appointments and appointments against substantive vacancies. A distinction has been drawn in (1) appointment according to the procedure established by law and in case of the petitioners the procedure for appointment was through Public Service Commission but the same was not through U.P. Public Service Commission at the time of ad-hoc appointment, and (2) appointments dehors law.
18. In A. Umarani Vs. Registrar, Co-operative Societies & Ors, (2004) 7 SCC 112, a large number of employees of the Co-operative Societies in the State of Tamil Nadu had been appointed without notifying the vacancies through the Employment Exchange and without following the other mandatory provisions of the Act and the Rules framed thereunder relating to recruitment. With a view to condone the serious lapses on the part of the Co-operative Societies in making such appointment the State Government issued various orders from time to time for regularizing such appointments. The Supreme Court held that such orders could not have been passed with retrospective effect condoning the actions on the part of the Co-operative Societies which were in flagrant violation of the provisions of the Act and the Rules. While holding that the provisions of the Act and the Rules reflect the Legislative Recruitment Policy and the provisions were mandatory in nature, the Supreme Court after referring to a number of earlier decisions held that an appointment made in violation of the mandatory provisions of the statute would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. While deciding the said case, reliance was placed on its earlier judgment in State of H.P. Vs. Suresh Kumar Verma and another, (1996) 7 SCC 562.
19. The Supreme Court in R.N. Nanjundappa Vs. T. Thimmaiah & Anr. (1992) 2 SCR 799 held as under:-
" If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
20. In Jawaharlal Nehru Technological University Vs. T. Sumalatha (Smt.) & Ors., (2003) 10 SCC 405, the Supreme Court rejected a similar contention stating:
"The learned counsel therefore contends that there is every justification for absorbing the concerned respondents on regular basis in recognition of their long satisfactory service. The learned counsel further contends that the adhoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularization. There is nothing on record to show that the concerned employees were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre"
21. In the State of Bihar & Ors. Vs. Project Uchcha Vidya Shikshak Sangh & Ors. (2006) 2 SCC 545, the Apex Court held that:-
" that question of regularization of services does not arise if the appointment has been made at initial stage in violation of the provisions of Article 14 and 16 of the Constitution of India. "
22. It has been further submitted by the respondent that if the appointment itself is in infraction of the Rules or if it is in violation of the provisions of the Constitution, the illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with the procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in definece of rules or it may have the effect of setting at naught the rules.
23. While deciding the case of Secretary, State of Karnataka and Ors Vs. Umadevi and Ors reported in (2006) 4 SCC-1 it was held as under:-
There is another question as to why the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? The Court is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent the distinction between regularization and making permanent, was not emphasized here can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete.
24. In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava reported in (1993) ILLJ190 SC it was held as under:-
"when the appointment was purely ad hoc and on a contractual basis for a limited period, therefore, by expiry of the period, the right to remain in the post comes to an end."
25. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Ors reported in (1994) II LLJ 977 SC it was held as under:-
"that an ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from year to years."
24. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said: "It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
26. In State of Haryana Vs. Piara Singh and Others [1992) 3 SCR 826., the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. And concluded in paragraphs 45 to 50:
"The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes."
27. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of the Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. The Court said:
"It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
28. Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, "the judicial process would become another mode of recruitment dehors the rules."
29. In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120), the Court was considering the validity of confirmation of the irregularly employed. It was stated:
"So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility."
30. The Court further stated :
"In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period.
31. The Court noticed that in that case all constitutional requirements were thrown to the wind while making the appointments. It was stated:
"On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India, both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so called regularizations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme."
32. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115], the Court answered the question of ad hoc appointment and regularization and stated:-
"Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363)."
33. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
34. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the petitioner would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
35. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. The Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
36. On one hand when it is argued to appoint without following the procedure, it would lead to an indefinite conclusion that the authority can dismiss or terminate the services without holding any inquiry or following the principles of natural justice because as per Section 16 of the General Clauses Act 1897 power to appoint includes power to remove/suspend/ dismiss. But as no employee can be removed without following the procedure prescribed by law or in violation of the terms of his appointment, such a course would not be available to the Appointing Authority, therefore, the natural corollary of this is that the Appointing Authority cannot make any appointment in contravention of the statutory rules, which have to be in consonance with the scheme of our Constitution.
37. The principles to be adopted in the matter of public appointments have been formulated by the Court in M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 as under:
"(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back-door should go through that door. (5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
38. A similar view has been reiterated by the Constitution Bench in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, observing that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment". The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
39. In State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, the Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. The Court held as under:-
"Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
40. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore & Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491; Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213; B.R. Kapur v. State of Tamil Nadu & Anr., AIR 2001 SC 3435; The Mor Modern Co-operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana & Anr., AIR 2002 SC 2513; Arun Singh v. State of Bihar & Ors., AIR 2006 SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors., AIR 2010 SC 3515; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161).
41. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.
42. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by Court time and again is "backdoor appointments or appointment de hors the rules".
43. In State of U.P. & Ors. v. U.P. State Law Officers Association & Ors., AIR 1994 SC 1654, the Court while dealing with the back-door entries in public appointment observed as under:
"The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on the considerations other than merit. In the absence of guidelines, the appointment may be made purely on personal or political consideration and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back-door have to go by the same door....From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them."
44. In Dr. Chandra Prakash's case reported in (2002) 10 SCC 710 it was held that those appointments which were made by the authorities in accordance with the procedure but on temporary basis, their services will be calculated for the purposes of seniority. The minimum qualification for recruitment of doctors was the degree of MBBS. Those doctors, who were not holding the degree of MBBS and were not recruited through any advertisement through Public Service Commission, the procedure established by the rules, were within the category of adhoc appointment as some of them were engaged on the basis of honorarium that was Rs.1500/- per month, that too was for one year on adhoc basis or till the regular appointment by the Public Service Commission, whichever is earlier. Due to administrative reasons those employees who were recruited according to the rules but on temporary basis, their services were regularized in accordance with 1979 Rules by constituting a Committee provided under Rule 4 of the said rules. Adhoc appointments were not made in accordance with Rules either under U.P. State Medical (Ayurved & Unani) Service Rules, 1990 or U.P. Subordinate (Gazetted) Medical Service Rules, 1964. The Service Rules of 1990 also provides the appointments through requisition through the Public Service Commission which is by publication of advertisement and written examination and/or interview. For the purpose of grant of pension, the service conditions are laid down under U.P. Retirement Benefit Rules 1961 [Rule 3 (8) read with Article 368 of the Civil Service Regulations] and for considering service for eligibility for grant of sanction the officer must hold a substantive post that may be either temporary or officiating but the services were regularized later on without any break. In the case of Regional Provident Fund Commissioner Andhra Pradesh v. Sri T.S. Hariharan reported in 1971 (2) SCC 68, it was held that in light of Para 10 of the Rules service means regular service in the establishment appointed regularly according to the procedure. Further in Union of India and others v. Rakesh Kumar reported in (2001) 4 SCC 309, it was held as under:-
"....by erroneous interpretation of the rules if pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship...."
45. Before coming into operation of Service Rules of 1990, the services were governed by 1964 Rules which provides that "The Governor may, without consultation with the Commission, make appointments in temporary or officiating vacancies for a period not exceeding one year, from amongst persons, who are eligible for appointment under these Rules". The Rules make it clear that the appointment must be in consultation with the Public Service Commission and in any case if appointment is done without the consultation then the period may not exceed one year. There is no rule or procedure in 1990 Rules to appoint any person without consultation with the Public Service Commission.
46. It is argued on behalf of the petitioners that they should also be given all benefits which were given to others.
47. The service conditions are governed by existing rules and the condition of appointment. It was held in Dr. Ashok Kumar Maheshwari v. State of U.P. reported in (1998) 2 SCC 502 that "There can be no parity in illegality and no estopple against the law". Further in the case of Dr. Rajeev Ranjan Misra v. State of U.P. reported in 2008 (1) ESC 595, it was held that "... conditions of service are different from rules of recruitment. Where a rule permits relaxation of provisions pertaining to conditions of service, the same would be applicable to the conditions of service after appointment in accordance with the rules. Rules of Recruitment/procedure for recruitment cannot be relaxed by exercising power under Rule 26, which is meant for relaxation in conditions of service in the case of hardship being faced by an employee by the Government".
48. Service conditions are laid down in Article 474 (B) of Civil Service Regulations regarding sanction of gratuity and pension with condition of minimum period of service and Hon'ble the Apex Court while deciding the case of Union of India v. Devki Nandan Agarwal reported in 1992 Supp. 1 SCC 323 held as under:-
"...The Courts cannot modify or alter the scheme and apply it to others, who are not otherwise entitled to a benefit under the scheme. It is known practice in a pensionary scheme to fix a minimum period for the purpose of pension. What shall be the minimum period for such pension will depend upon a particular service, the age at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and various other factors. Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is so to say a qualification for eligibility........".
49. In the case of State of Haryana v. Shakuntala Devi reported in 2008 AIR SCW 8180, Hon'ble the Apex Court held as under:-
"When pensionary benefits are claimed, they are claimed only as service benefit that can be derived from statutory provisions made in this regard. If the scheme for pension framed by the Government mentions certain eligibility qualifications, such qualifications cannot be directed by the Hon'ble Courts to be ignored or waived off for the grant of pension to ineligible persons."
50. In the case of State of Haryana v. Haryana Pashu Chikitsa Evam A.H.T.S. Association reported in (2008) 8 SCC 4, Hon'ble the Apex Court held as under:-
"if the Rule Making Authority would have intended to prescribed completion of merely 10 years of continuous service, which may legitimately include seasonal, casual, daily rated and adhoc services also, there would have been no reason to use the expression ''regular' as adjective before the word ''service' used in the Government orders".
51. A Constitution Bench of the Supreme Court in the case of Direct Recruit Engineer's case, considered whether the ad hoc service followed by regular service could be counted for the purposes of seniority and in this context the Supreme Court observed in paragraph 44 as follows:-
"(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 regularization of his service in accordance with the rules, the period of officiating service will be counted."
52. Under category (A) it has been expressly provided that where the initial appointment is not according to rule but is only ad hoc and made as a stop-gap arrangement, the period of officiation on such post cannot be counted for the purpose of seniority.
53. In Keshav Chandra Joshi & Ors. Vs. Union of India & Ors., AIR 1991 SC 284, the Hon'ble Supreme Court explained the scope of proposition "B" in Direct Recruit Class II Engineers (supra) observing as under:-
"Propositions ''A' and ''B' cover different aspects of one situation. One must discern the difference critically. Proposition ''B' must, therefore, be read along with para 13 of the judgment wherein the ratio decidendi of Narendra Chadha was held to have considerable for. The latter postulated that if the initial appointment to a substantive post or vacancy was made deliberately, in disregard of the rule and allowed the incumbent to continue on the post for well over 15 to 20 years without reversion and still the date of regularisation of the service in accordance with the rules the period of officiating service has to be counted towards seniority. This Court in Narendra Chadha's case was cognizant of the fact that the rules empower the Government to relax the rule of appointment. Without reading paragraph 13 and Proposition ''B' and Chadha's ratio together the true import of the proposition would not be appreciated................ If the concerned rules provide the procedure to fix inter se seniority between direct recruits and promotees, the seniority has to be determined in that manner."
54. The Court also held that the appointment must be in substantive capacity and according to the Rules and within the quota of a substantive vacancy as there is a marked distinction between the appointment in substantive capacity and appointment to the substantive post. The officiation to post must be by an order of appointment and if the appointment on the post is validly made by the competent authority then only an employee becomes a member of the service. If the regularisation of an employee is not in accordance with the statutory provisions, officiation will not be reckoned for the purpose of seniority or promotion.
55. In Para 13 of the Direct Recruit Engineer's case, the Court had approved the ratio of S.B. Patwardhan's case that principle of determining the inter se seniority has to be consistent with the mandate of Articles 14 and 16 of the Constitution. An employee appointed on ad hoc basis on a stop-gap arrangement without following the procedure prescribed by law cannot claim the benefit of the period of officiation for the purpose of seniority or promotion.
56. In State of West Bengal & Ors. Vs. Aghore Nath Dey & Ors., (1993) 3 SCC 371, the Apex Court elaborately explained the scope of the propositions (A) and (B) as set out in the aforementioned Direct Recruit case observing as under:-
"There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot 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 stopgap arrangement, the officiation in such posts cannot be taken into account for 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 stopgap 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...............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 latter expression ''till the regularization 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, 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........"
57. Similar view has been reiterated in U.P. Secretariat U.D.A. Association Vs. State of U.P. & Ors., JT 1997 (2) SC 461.
58. It has, therefore, to be ascertained from the facts of each case as to whether the case of the petitioner will fall under category (A) or (B) indicated by the Supreme Court in the Constitution Bench decision in the case of Direct Recruit Engineer's case.
59. The Supreme Court in the cases of Masood Akhtar Khan Vs. State of M.P., (1990) 4 SCC 24; Excise Commissioner, Karnataka & Ors. Vs. V. Sreekanta, 1993 Supp. (3) SCC 53; Anuradha Bodi (Dr.) Vs. Municipal Corpn. of Delhi, (1998) 5 SCC 293; Keshav Deo Vs. State of U.P., (1999) 1 SCC 280; L. Chandrakishore Singh Vs. State of Manipur, (1999) 8 SCC 287; T. Vijayan & Ors. Vs. Divisional Railway Manager & Ors., AIR 2000 sc 1766; State of Bihar Vs. Kameshwar Prasad Singh, AIR 2000 SC 2306; and Santosh Kumar & Ors Vs. G.R. Chawla & Ors., AIR 2003 SC 3304, after considering the Constitution Bench decision in Direct Recruit Engineer's case, held 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.
60. In Syed Khalid Rizvi & Ors. Vs. Union of India & Ors., 1993 Supp (3) SCC 575, the Apex Court while resolving the dispute of seniority between promotees and direct recruits in Indian Police Service, held that as determination of seniority has been interlinked with the recruitment of the promotee officers to the Indian Police Service, to satisfactorily solve the problem, the Recruitment Rules, Promotion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together.
61. It was so held observing that seniority, though normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the IPS by promotion, which should be strictly complied with before becoming eligible for consideration for promotion, and are not relaxable. In absence of the Rules, ordinarily the length of service is taken into account.
62. Similar view has been reiterated in A.K. Bhatnagar & Ors. Vs. Union of India & Ors. (1991) 1 SCC 544; Indian Administrative Service (SCS), Association U.P. & Ors. Vs. Union of India & Ors., 1993 Supp (1) SCC 730; and Prafulla Kumar Das & Ors. Vs. State of Orissa & Ors., (2003) 11 SCC 614, observing that seniority is an incidence of service and when rules prescribe the method of computation, it is squarely governed by such Rules. No one has vested right to promotion or Rules.
63. In Dr. M.A. Haque & Ors. Vs. Union of India & Ors., (1993) 2 SCC 213, the Supreme Court held that expression used by the Constitution Bench in Direct Recruit Engineer's case means "the Rules of recruitment and not the special procedure laid down by the Court". Therefore, the Apex Court emphasized that a case has to be examined giving paramount importance to the statutory Rules. If the appointments had been made without following the procedure prescribed under the statutory Rules, the question of reckoning the officiating period for determining the seniority will not arise.
64. In Md. Israils & Ors. Vs. State of West Bengal & Ors., AIR 2002 Sc 468, the Hon'ble Apex Court reiterated the same view and while deciding the case, reliance had also been placed upon the earlier judgments in Suraj Parkash Gupta Vs. State of J & K, AIR 2000 SC 2386; and M.K. Shanmugam Vs. Union of India, AIR 2000 SC 2704 wherein it has been held that the particular statutory Rules governing the services of an employee have to be kept in mind and in case the promotion was de hors the said Rules, the question of reckoning the period of officiation for the purpose of seniority and promotion would not arise. The Court must also examine as to whether the authority had a power to grant relaxation under the said Rules and if relaxation is so granted, it should be in accordance with the said Rules.
65. In M. Amanullah Khan Vs. Government of India & Ors., (2004) 7 SCC 586, the Hon'ble Apex Court placing reliance upon its earlier judgment in R.R.S. Chauhan Vs. Union of India, 1995 Supp (3) SCC 109; and Syed Khalid Rizvi (supra) held that if the officiation in a cadre post is fortuitous in nature, the period of officiation cannot be taken into account for the purpose of fixing the seniority. The Apex Court held that where an appointment is offered to a person as a stop gap-arrangement for non-availability of a regularly selected person to man temporary vacancies in a cadre post in deviation of the Rules, though in compelling circumstances, the benefit of the officiating period cannot be claimed.
66. In P.N. Premchandran Vs. State of Kerala & Ors., (2004) 1 SCC 245, the Apex Court held that if there is a lapse on the part of the employer-authority in making the regular promotions, though ad hoc promotion had been given earlier, the benefit of officiating period is to be given by making the promotions with a back date unless the officer can be blamed for the delay.
67. Reference may also be made to the decisions of the Supreme Court in the case of Union of India Vs. Joginder Sharma reported in JT 2002 (7) SC 425 and in the case of State of Mizoram and another Vs. Mizoram Engineering Service Association and another reported in (2004) 6 SCC 218 wherein the Supreme Court has clearly held that even in the absence of statutory Rules the ad hoc appointments have to be made in consonance with the provisions of Articles 14 and 16 of the Constitution of India.
68. Thus, the law stands crystallized that a person appointed on ad hoc basis on a post de hors the Rules or without following any procedure prescribed by law, cannot claim the benefit of reckoning the period of service rendered by him as such for the purpose of seniority or promotion. The case of an individual person claiming such a relief is to be examined in the light of the propositions ''A' and ''B' propounded by the Hon'ble Apex Court in Direct Recruit Engineers' case reading it along with the explanation given in paragraph 13 of the said judgment, as also explained subsequently by the Hon'ble Apex Court time and again in Keshav Chandra Joshi and others (supra) and Aghore Nath Dey and others (supra). The appointment should be made after considering the suitability of all eligible candidates in strict compliance of the statutory Rules. A minor deficiency in following the procedure prescribed under the Rules, may be ignored but, if the appointment is to be made in consultation with the Commission, such a deficiency cannot be ignored as the appointment itself would be de hors the Rules. Where the quota Rule could not be complied with for some compelling circumstances and appointments have been made with due deliberation and appointees continue for a very long period without any interruption, benefit of such a period is permissible, provided the statutory Rules applicable in the service confer the power upon the Government to relax the service conditions.
69. When a retrospective promotion is given to the employees, normally they are entitled to all benefits flowing there from, but in case of notional promotion with retrospective effect, in normal course the incumbent is not entitled automatically for payment of arrears of salary as he does not work in the promotional post. A similar prayer was made before Hon'ble the Apex Court and while deciding the writ petition it was observed that the Court's orders have been complied with and notional promotional have been granted to the applicants. Notional promotion and consequential benefits to those petitioners who had filed writ petition before Hon'ble the Apex Court and for policy decision for grant of notional promotion and consequential benefits to those Doctors who had not approached to the Court it was observed as follows:-
" However we make it clear that with regard to others who have not been granted arrears of salary and have not moved before any other Court of law or this court, we have not expressed any opinion. They cannot claim benefit automatically in view of the order passed in these cases. Their case may be determined individually on the merit of this case. "
70. Now, in the light of above decision it is clear that notional promotional and consequential benefits have been given to all the petitioners from the date when it was due and when the matter was placed before Hon'ble the Apex Court it was decided accordingly and the writ petition were disposed of.
71. It has further been submitted by learned State counsel that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his right and acquiesces into the situation, his writ petition cannot be heard after a lapse of years.
72. A Constitution Bench of the Hon'ble Supreme Court, in Ramchandra Shanker Deodhar & ors. Vs. State of Maharashtra & ors., AIR 1974 SC 259, considered the effect of delay in challenging the seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. While deciding the said case, the Apex Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand Vs. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reasons of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."
73. The Apex Court also placed reliance upon its earlier judgment in R.N. Bose Vs. Union of India & ors., AIR 1970 SC 470, wherein it has been observed as under:-
"It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."
74. In R.S. Makashi Vs. I.M. Menon & ors., AIR 1982 SC 101, the Apex Court considered the entire aspect of limitation, delay and laches in filing the writ petition. The Court also referred to its earlier judgment in State of Madhya Pradesh & Anr. Vs. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court further considered the issue and held as under:-
"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years...... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the court with the challenge against the seniority principles laid down in the Government Resolution of 1968..... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government Resolution, should have been dismissed."
75. The issue of challenging the existing seniority list, which continued to be in existence for a long time, was again considered by the Hon'ble Apex Court in K.R. Mudgal & ors. Vs. R.P. Singh & ors., AIR 1986 SC 2086 and the Apex Court held as under:-
"Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.......In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches."
76. While deciding the case, the Apex Court placed reliance upon its earlier judgment in Melcom Lawrance Cecil D'Souza Vs. Union of India & ors., AIR 1975 SC 1269, wherein it had been observed as under:-
"Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
77. In B.S. Bajwa Vs. State of Punjab & ors., (1998) 2 SCC 523, the Hon'ble Apex Court has taken the same view, observing as under:-
"It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition."
78. In Dinikar Anna Patil & Anr. Vs. State of Maharashtra, (1999) 1 SCC 353, the Hon'ble Supreme Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the court regarding delay, the case may be considered.
79. In K.A. Abdul Majeed Vs. State of Kerala & ors., (2001) 6 SCC 294, the Hon'ble Supreme Court held that seniority assigned to any employee could not be challenged after a lapse of seven years; though even on merit it was found that seniority of the petitioner therein had correctly been fixed.
80. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, it cannot be challenged and changed on any ground whatsoever.
81. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. (Vide Aflatoon & ors. Vs. Lt. Governor, Delhi & ors., AIR 1974 SC 2077; State of Mysore Vs. V.K. Kangan & ors., AIR 1975 SC 2190; Pt. Girdharan Prasad Missir Vs. State of Bihar & ors., (1980) 2 SCC 83; H.D. Vora Vs. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh Vs. Union ofIndia, AIR 1992 SC 1414; The Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; Ram Chand Vs. Union of India, (1994) 1 SCC 44; State of Maharashtra Vs. Digambar, AIR 1995 SC 1991; Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. (P) Ltd. & ors., (1996) 11 SCC 501; Padma Vs. Dy. Secy. to the Govt. of Tamil Nadu, (1997) 2 SCC 627; Hindustan Petroleum Corp. Ltd. Vs. Dolly Das, (1999) 4 SCC 450; Life Insurance Corporation of India Vs. Jyotish Chandra Biswas, (2000) 6 SCC 562; L. Muthu Kumar & Anr. Vs. State of Tamil Nadu & ors., (2000) 7 SCC 618; Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig & ors., AIR 2000 SC 671; and Inder Jit Gupta Vs. Union of India & ors., (2001) 6 SCC 637.
82. The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., (1983) 2 SCC 1, wherein the Apex Court has observed as under:-
"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."
83. Similarly, in State of U.P. Vs. Raj Bahadur Singh & Anr., (1998) 8 SCC 685; the Hon'ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."
84. In S.K. Mastanee Bee Vs. General Manager, South Central Railways & ors., (2003) 1 SCC 184, the Hon'ble Supreme Court held that entitlement of a particular right guaranteed under hapness condition of a party may be a ground to entertain a petition even at a belated stage. But that was a case where third party's interest had not crystallized.
85. In Northern Indian Glass Industries Vs. Jaswant Singh & ors., (2003) 1 SCC 335, the Hon'ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time.
86. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) "The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
87. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was observed as follows:
"9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987, gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."
88. In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."
89. The Court also quoted following passage from the Halsbury's Laws of England (para 911, p.395):
"12......In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii)any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
90. It has been submitted by learned Additional Chief Standing Counsel Mr. Sanjay Bhasin that in compliance of the order dated 04.12.2002 passed by Hon'ble the Apex Court in writ petition no. 43 of 1998 (Dr. Chandra Prakash vs. State of U.P. and Others), a tentative seniority list of PMHS cadre was issued inviting objections on the same and after removal of the objections, a final seniority list was published on 02.04.2003 and amended final seniority list was also issued on 05.06.2003. Vide office memorandum dated 02.02.2005, notional promotion was given to the Medical Officers who had been retired and vide another office memorandum dated 20.05.2005 notional promotion to the Medical Officer who were in service was granted and order was issued. It has further been submitted that since the criteria for appointment on the higher post like Additional Director, Director and Director General was seniority-cum-merit, the benefit of notional promotion against the above posts could be implemented only in accordance with rules.
91. Vide Government Order dated 05.06.2003 all other left over matters relating to notional promotion or payment of arrears or consequential benefits were taken up to consideration and orders were issued accordingly.
92. The petitioners have only prayed that opposite parties may be directed to provide incidental and consequential benefits as per direction of Hon'ble the Supreme Court but they have not disclosed any fact as to what amount of arrear is due which has not been paid in compliance of the order of Hon'ble the Apex Court.
93. On the other hand, relevant Government Orders have been issued and in the counter affidavit the respondents have submitted that the orders have been complied with and notional promotion and consequential benefits, which were legally due, have been given to the petitioners.
94. In light of the above facts, since the petitioners have retired and all the dues of arrears have already been paid, the prayers as contained in the writ petitions are not maintainable. Consequently, all the aforesaid writ petitions are liable to be dismissed and are hereby dismissed. The petitioners shall bear their respective costs.
Dated: 23.03.2017.
A. Katiyar
(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)