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JUDGMENT 2000 (3) SCR 807 The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave granted in all the special leave petitions. These Civil Appeals arise out of several writ petitions filed in the High Court of Jammu & Kashmir in which common judgment was delivered on 14.12.1998. The judgment of the High Court deals with power of Government to appoint officers on promotion temporarily for periods of more than six month without consulting the Public Service Commission, grant of seniority to such promotees in respect of service within their quota and also outside quota. Validity of the order passed by the State Government on 2.1. 1998 regularising, at one stroke, several ad hoc promotions made between 25.5.1973 to 31.12.1996 was in issue, so far as the Electrical Wing was concerned. We are concerned only with the regularisation of ad hoc Assistant Engineers and Assistant Executive Engineers (see Point 2 in the High Court Judgment). The High Court held that ad hoc/stop-gap service of promotees could not be regularised. A contention was also raised before us by the direct recruits that stop gap or ad hoc service of promotees could never be regularised and only service rendered in a post where a person if appointed "according to rules" can be regularised and that there was rota coupled with quota. All the appeals before us have been filed by the promoted Assistant Engineers.

Regularisation of ad hoc/stop-gap service under Rule 23 : The contention of direct recruits and the High Court's view :
Here, two important findings given by the High Court have to be referred to. The High Court at one stage observed as follows: if the exercise of selection of candidates has not been done by the Commission for regularisation of ad hoc promotees' for substantive promotions, in that event, without consultation of the Commission, the regularisation of ad hoc promotions is in violation of Regularisation 4(d)(ii) framed under the constitutional provision contained in section 133 or the Constitution of Jammu and Kashmir". This would mean that the High Court in a way accepted that services of such promotees could be regularised if the Service Commission was consulted.
"Even where rules permit antedating of probation, the service rendered in stop-gap arrangement cannot be counted towards sen-iority. Discretion to antedate- appointment can be exercised only where initial appointment is according to rules. Even a rule that permits regularisation of service retrospectively, does not entitle counting of stop gap service towards seniority."
Rules relating to retrospective regularisation permit regularisation of ad hoc/stop gap service of promotees :
For the purpose of deciding the point, it is necessary to refer to other rules relevant on the question of regularisation. Rule 2(e) of the Recruitment Rules, 1978 defines "Member of Service" as a person appointed to a post in the service under the said rules. Under rule 5 of the said Rules which deals with "Qualification and method of recruitment", it is stated in sub-clause (1) that one must possess the qualifications stated in the schedule for appointment or promotion. Clause (2) refers to 'appointment' to a service to be made by (a) direct recruitment, (b) by promotion/selection and (c) partly by direct recruitment and partly by promotion. Rule 8 of the 1978 recruitment Rules deals with 'probation' and states that persons 'appointed' against substantive vacancies, whether directly or by promotion, to any class, or category in the service shall be on probation for two years and their confirmation shall be regulated by the provisions of the J & K (Civil Services (CCA) Rules, 1956. Rule 11 (1) of the same Rules refers to seniority to be regulated by J & K Civil Services (CCA) Rules, 1956. The second proviso to Rule 11(3) of the 1978 Rules requires that "seniority of Assistant Engineers appointed by direct recruitment and by promotion shall, in a particular year, be determined, in the ratio fixed for direct recruitment and promotion". It is to be noticed that these Recruitment Rules, 1978 for Engineers do not speak separately of recruitment by transfer. They only speak of direct recruitment and promotion. Even the schedule when it deals with 60% quota for graduate Junior Engi-neers and 20% quota for non-graduate, the word used is 'promotion'.

Promotees cannot seek regularisation of ad hoc service in certain situations:

We shall next refer to another set of cases relied upon by the direct recruits where, on facts, the promotees were not given benefit of ad hoc/slop gap service. Here the service rendered by the promotee was either outside quota or the candidates were not eligible by the date the order of regulari-sation was passed or were not having the required experience. In C.K. Antony v. B. Muraleedharan, [1998] 6 SCC 630, arising from the Kerala State has some special features. There was a rule similar to Rule 23 of the J & K Rules and Rule 23(a) of the Andhra Pradesh Rules. The said rule permitted retrospective regularisation of the promotees from anterior dates but this rule stated that the said regularisation should be "without prejudice to seniority". It was no doubt interpreted that the rule meant that the seniority of direct recruits could not be affected. The question as to when it could be said that the seniority of a direct recruit would be prejudiced, was not elaborated. Whether the case of direct recruits would be prejudiced even if the promotees were given seniority from an anterior date upon a post within their quota, was not decided. Further, on facts, the earlier ad hoc promotion of the promotees was not against cadre posts but was on the excess quota. Obviously, it could not count for seniority in view of Direct Recruit's case. Any regularsation of such service in a direct recruitment post would definitely prejudice the seniority of direct recruits. In view of the above peculiar features, the case is clearly distinguishable. Similarly, the decision in D.N. Agarwal v. State of MP, [1990] 2 SCC 553, cannot help. There it was held that the benefit of retrospective regularisation for promotees could not be granted but this was because the promotees lacked the requisite years of experience and were not eligible. B.N. Nagarajan v. State of Karnataka, [1979] 3 SCR 937 the promotees service from l.11.1956 was regularised and it was held that the order of regularisation by government w.e.f. 1.11.1956 by an executive order was not tenable because the probation Rules came in 1958 and in fact, the promotions were partly within quota of direct recruits. The case in State of Bihar v. Akhouri Sachindra Nath, AIR (1991) SC 1244, is again distinguishable because there the promotees were not even officiating in the post on 22.2.61 and were not even bom in the cadre. These cases are all distinguishable.