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47. To sum up, we hold that (A) Once an incumbent is appointed to a post according to a rule, his seniority has to counted from the date of appointment and not according to date of his confirmation. The corollary to 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 considering the seniority."

The decision in Direct Recruits (supra) stands for the principle that ad hoc service cannot be counted for determining the seniority if the initial appointment has been made as a stop gap arrangement and not according to rules. The reliance placed by the Single Judge in the judgement dated 6 December 1991 on Direct Recruits (supra) to hold that the ad hoc service should be counted for conferring the benefit of seniority in the present case is clearly misplaced. This principle laid down in Direct Recruits (supra) was subsequently followed by this Court in Keshav Chandra Joshi v. Union of India. Recently a two judge Bench of this Court in Rashi Mani Mishra v. State of Uttar Pradesh, of which one of us (Justice DY Chandrachud) was a part, observed that the services rendered by ad hoc employees prior to their regularization cannot be counted for the purpose of seniority while interpreting the Uttar Pradesh Regularization of Ad Hoc Appointment Rules. This Court noted that under the applicable Rules, "substantive appointment" does not include ad hoc appointment and thus seniority which has to be counted from "substantive appointment" would *37* WP DC PROMOTIONS not include ad hoc service. This Court also clarified that the judgement in Direct Recruits (supra) cannot be relied upon to confer the benefit of seniority based on ad hoc service since it clearly states that ad hoc appointments made as stop gap arrangements do not render the ad hoc service eligible for determining seniority. This Court speaking through Justice MR Shah made the following observations:

24. He then draws our attention to the proviso below *50* WP DC PROMOTIONS Rule 10(1), which permits the Government to appoint the Deputy Collectors purely as a stop-gap arrangement, if the final select list is exhausted and the exigencies of administration require the vacancies in that cadre to be filled up immediately. He, therefore, relies specifically on Rule 10(2) and contends that the appointment made as a stop-gap arrangement under the proviso to sub rule (1) of Rule 10, shall be deemed to be a regular provisional appointment under sub-rule (1), only when the officer in question is included in the final select list determined by the Government under Rule 9(7). When the officer appointed as a stop gap arrangement is not included in the final select list, he has to be reverted immediately after such final select list is determined by the Government under Rule 9(7). He then draws our attention to Rule 10(3) by which, the promotion under sub- rule (1) or (2), would continue to be provisional until the officer is considered fit to be continued in the cadre of Deputy Collectors, in the review made under Rule 12.

standi to contest the Transfer Applications.

(l) Issue No.4 reads as "Whether the appointment of the Applicants listed in TA-1 and TA-2 can be classified as a stop-

gap arrangement as per provisions of Rule 10(1) of the Rules of 1977?"

*58* WP DC PROMOTIONS This was answered by concluding that the provisos

(i) and (ii), to Rule 10(1), provide for filling up the vacancies in the cadre of Deputy Collectors purely as a stop-gap arrangement. However, proviso (i) indicates that only an officer in the cadre of Tahasildar whose name has been included in the combined final seniority list prepared under Rule 8(4), could be appointed as a Deputy Collector on a stop-gap basis. It was concluded that the Applicants were not eligible for appointment even on stop-gap basis on the post of Deputy Collector under proviso (i) of Rule

26. As stated, the counsel for the promotees placed strong reliance on proposition 'B' while the counsel for the Direct Recruits relied on proposition 'A'. The controversy is as to which of the propositions would apply to the facts of this case. The proposition 'A' lays down that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The latter part thereof amplifies that where the initial appointment is only ad hoc and not according to rules and is made as a stop gap arrangement, the period of officiation in such post cannot be taken into account for reckoning seniority. The quintessence of the propositions is that the appointment to a post must be according to rules and not by way of ad hoc or stop gap arrangement made due to administrative exigencies. If the initial appointment thus made was de hors the rules, the entire length of such service cannot be counted for seniority. In other words the appointee would become a member of the service in the substantive capacity from the date of his appointment only if the appointment was made according to rules and seniority would be counted only from that date. Propositions 'A' and 'B' cover different aspects of one situation. One must discern the difference critically. Proposition 'B' must, therefore, be read *77* WP DC PROMOTIONS along with para 13 of the judgment wherein the ratio decidendi of Narender Chadha' was held to have considerable force. 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 till 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 Narender Chadha 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 Narender Chadha' ratio together the true import of the proposition would not be appreciated. We would deal with the exercise of power of relaxing the rule later. After giving anxious consideration, we are of the view that the latter half of Proposition 'A' would apply to the facts of the case and the rule laid down in that half is to be followed. 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.