TaxTMI 
TaxTMI 
2000 (4) TMI 853
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....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. How the appeals have arisen: 3. SWP 522/90 was filed in the High Court by the direct recruit Assistant Engineers of the Mechanical department to fix a seniority and to declare that they were entitled to the post of Assistant Executive Engineers w.e.f. the date of their appointment as Assistant Engineers and to treat direct recruits as senior to respondents 3 to 121 therein (promotees) and to quash the promotion of respondents 3 to 32 therein as Assistant Executive Engineers (Mechanical). Similarly SWP 227/97 and 47/98 were filed by direct recruit Assistant Engineers (Electrical) seeking ....
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....ation, the Government issued two orders one on 29.6.87 and another on 29.10.87, the latter in super cession of the former and reorganised the service as follows: (a) the existing post of Assistant Engineer was upgraded and re-designated as Assistant Executive Engineer, to be kept in charge of a Sub-Division. The Assistant Engineer was to work as a Technical officer to the Assistant Executive Engineer in the sub-division and also to the Executive Engineer in each division. All the Diploma holders (Section Officers) were to be redesignated as Junior Engineers. In November 1987,1116 posts of Assistant Engineers were created (as held by the High Court) in all the three wings. The Government also issued SRO 209 of 1992 on 4.9.92, amending the Schedule to the Recruitment Rules, 1978. The ratio was 20% by direct recruitment, 60% by promotion of graduate Junior Engineers with 3 years service and 20% by Diploma holder Junior Engineers with 10 years service etc. 9. Thereafter, Government issued a large number of orders and officers at various levels were promoted to the next higher post on an ad hoc basis for six months. Later Government issued orders continuing these ad hoc/stop gap appoin....
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....ond six months and contended that continuance of ad hoc stop gap promotion beyond six months (as per the order issued during 1987 to 1996) was non-est and void and could not be subject of regularisation. The seniority list cannot show these ad hoc promotees as seniors to direct recruits. There is rota as well as quota. They sought the quashing of existing seniority lists and they asked for issuing fresh seniority lists. On the other hand, the promotee officers filed SWP. 98/93,705/94 and 777/94 and in the two latter petitions, the seniority list dated 28.4.94 was questioned to the extent it was favourable to the direct recruits. The High Level Committee: 12. Government appointed a High Level Committee on 21.5.97 to go into the various issues arising between the direct recruits and promotees. On the three issues referred, the Committee gave a Report soon thereafter in 1997. It said that merely because the State Government could not make direct recruitment due to inaction, the quota rule could not be said to have broken down. Thereafter, it opined as follows: (1) as and when the direct recruitment was made, the direct recruits would be entitled to placement of their seniority to th....
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....ld be counted or regularised by the Government. The findings of the High Court: 15. The High Court framed three points for consideration. It held on the first point that promotion to the post in the Gazetted cadre required consultation with the Commission on the question of promotion/ transfer from one service to another and also on the suitability of the candidates for appointment, promotion and transfer; that under the JK Service Commission, Regulation 4(d)(ii), officiating promotion or transfer to any service or post, should not be for more than six months, unless the Commission was consulted and that the orders for such ad hoc continuance beyond six months and till regularisation, without consultation were ineffective. It held that the quota rule had not broken down. The posts were advertised in 1987, but it was only in 1993,1994 and in 1998 that the direct recruits were appointed in the three wings, and that in the Civil, Mechanical and Electrical Wings 7, 16, and 20 posts were under excess occupation by the promotees and these posts were not filled by direct recruitment because the Government directed advertisement of only 10% and not 20% for direct recruits. It was held th....
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....heir quota. However, the claims of the promotees whose stop gap promotion exceeded six months without consultation of the Commission should be referred to the Commission "for determining their suitability". The seniority was to be fixed for direct recruits and promotees in terms of the quota-rota rule, within their respective quota in a particular year. Stay orders in this Court: 16. In this Court notice in SLPs was issued on 7.4.1999 and the order of the High Court was stayed. But then a further order was passed on 12.5.99 in IAs. 3 & 4 in SLPs. 5329-5330/99 that the stay order dated 7.4.99 did not imply any right to effect promotions during the pendency of the SLPs. It was directed that status quo be maintained. 17. During the course of hearing of the case, at one stage counsel made some efforts to narrow done the disputes between the two groups by discussion but ultimately all the points arising between the parties were argued elaborately and thoroughly. 18. The written submissions by both parties covered as many as sixty rulings of this Court. Having regard to the vehement arguments before us and also in order to explain the various decisions, - which may appear t....
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....es whether it is permissible to relax recruitment rules? Implied relaxation of recruitment rule relating to promotion - plea as to 21. Learned senior counsel appearing for the promotee Assistant Engineers contended that the order dated 2.1.98 regularising the ad hoc/stop gap service passed by Government, even if it be without the concurrence of the Commission, could be treated as one passed by the Government by impliedly "relaxing" the Service Commission Regulation requiring consultation with the Commission. Provisions of Article 320 requiring consultation with the Commission (here Section 133 of the J & K Constitution), were not mandatory. When promotees had put in long years of service, it was permissible for the State to relax the recruitment rule and regularise the service outside the PSC Regulations. It was to be deemed there was relaxation. This contention was contested by the learned senior counsel for the respondents. The Rules: 22. For the purpose of the above argument, the promotees relied on the following rules: 23. Rule 13 of the 1978 Recruitment Rules states that in respect of residuary matters, (i.e. 'matters not specifically covered by the said Rul....
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....iting. Reasons for so called relaxation of recruitment rules - Cabinet decision of 19. 12.97: 27. As to the reasons for relaxation of recruitment rule of promotion requiring consultation with the Commission, counsel for promotees referred us to the Cabinet decision preceding the issuance of the blanket regularisation Order dated 2.1.98. It is dated 19.12.97. We have to examine the reasons stated in the Cabinet decision and find out if adequate reasons have been given. It was stated there that in view of Court litigation, there used to be delay in finalising seniority lists and that this had resulted in officers retiring at lower levels and getting financial/ promotional benefit only after retirement. The finalisation of seniority lists and the reference of the promotees' cases to the P.S.C./D.P.C would take fairly long time to be completed. It was felt that it would definitely be preferable if the confusion, was cleared once and for all. At the level of Assistant Engineers, 574 were on ad hoc promotion and at the level of Assistant Executive Engineers there were 401, requiring regularisation. This view was supported by the Law Department and it said that undue delay had adver....
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....d 2.1.98 does not however use the word "relaxation" though the Cabinet proceedings use the said word. The above order was issued after the writ petitions were filed by the direct recruits. This order too was questioned by them by amending the relief in their writ petitions. Relaxation Rules - scope of: If recruitment rules can be relaxed: A previous view: 28. Some relaxation rules permit relaxation of conditions of service and some permit relaxation of rules. Some permit relaxation in any particular case and some permit relaxation in favour of a person or class of persons. In J. C. Yadav v. State of Haryana (1990)IILLJ138SC , a three Judge Bench while dealing with Rule 22 of the relevant rules which permitted relaxation, in case of hardship, in "any particular case", held that the above words did not mean a particular person but meant "pertaining to an event, situation or circumstances". The power could therefore be exercised even in favour of a group. Two earlier decisions: 29. Promotees relied upon the ruling in G.S. Lamba v. Union of India (1985)IILLJ282SC but the said decision cannot, in our view, apply. There the promotees were appointed regul....
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.... observed, to be read as 'shall consult PSC' and the rule was treated mandatory. In Syed Khalid Rizvi v. Union of India (1993)ILLJ887SC , decided by a three Judge Bench, a similar strict principle was laid down. The relevant Rule - Rule 3 of the Residuary Rules (see p. 603) (para 33) in that case did permit relaxation of "rules" Even so, this Court refused to imply relaxation of recruitment rule and observed: the condition precedent, therefore, is that there should be appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused,.... It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed 31. Similarly, in State of Orissa v. Sukanti Mohapatra (1993)IILLJ297SC , it was held that though the power of relaxation stated in the rule was in regard to 'any of the provisions of the rules', this did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire ad hoc service of direct recruit could not be treated as regular service. Similarly, in....
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....alid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, power under Rule 5 of the J & K CCA Rules, 1956 to relax rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment. On facts, relaxation bad: 34. On facts, the reasons given in the Cabinet note for granting relaxation are hopelessly insufficient. In fact, the letter of the Commission dated 25.11.97, shows that the Commission was prepared to give its opinion in regard to regularisation of each promotee but the Government backed out when the Commission called for the records relevant for considering suitability for regular promotion. In our view, there can be no hardship for a person seeking appointment or promotion to go by the procedure prescribed therefore. The relevant recruitment rule for promotion cannot itself be treated as one producing hardship. Narender Chadda 's case must be treated as an exception and not as a rule. In fact, if such relaxation is permitted in favour of promotees then the same yardstick may have to be applied for direct recruits. In fact the J.K. Government has already started....
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.... Association v. State of Maharashtra [1990]2SCR900 . It laid down in propositions D & E as follows: (D) If it becomes impossible to adhere to the existing quota rule, it should be . substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it is impossible to do so, the inference is irresistible that the quota rule, had broken down. (E) When the quota rules has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. The above decision deals with a situation where the quota rule has broken down and regular promotees whose service are regularised are posted in the direct recruitment quota. In that event, it is permissible to count that service for purpose of seniority of the promotee. But, that is the position when the quota rule breaks down. Quota rule has not broken down: 38. On the question of breakdown of quota rule, except the letharg....
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....ld that the quota rule has not broken down. Rota: No express rota rule: 42. We shall next refer to the contention for the direct recruits that "rota-quota" rule is to be applied. Before us, it is not disputed by the learned Counsel for the direct recruits that in the Recruitment Rules, 1978, there is only a quota rule and that no rota rule has been expressly prescribed. Question is whether 'rota' can be implied? 43. The direct recruits contend that rota is to be implied or read into the 'quota' rule. It is also argued that there has been a previous practice of applying a rota and that this fact stands conceded in the counter-affidavit filed by the Government in SWP. 824-B/94. Reliance is also placed on Cabinet note of December, 1997 where the view of the Law Department that quota-rota rule is to be applied, is referred to. 44. In our opinion, in view of the admission before us by all parties that there is no express rota rule, the decision of the High Court that 'rota' principle applied cannot be upheld. As held in N.K. Chauhan v. State of Gujarat [1977]1SCR1037 by Krishna Iyer, J. there is no question of a quota being necessarily 'inter-l....
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....nsulting the Commission. This is clear from Regulation 4(d)(ii) already referred to. The High Court was also right in holding that the Government could not have also passed any orders such as the one dated 2.1.98 of regularisation of the entire ad hoc service without consulting the Commission. Regularisation of ad hoc/stop gap service under Rule 23: The contention of direct recruits and the High Court's view: 49. 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 section 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 Regulation 4(d)(ii) framed under the constitutional provision contained in Section 133 of the Constitution of Jammu and Kashmir". This would mean that the High Court in a way accepted that services or such promotees could be regularised if the Service Commission was consulted. 50. But the High Court again stated at a later stage that the ad hoc/stop gap service rendered by promo....
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....nted' 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 Engineers and 20% quota for non-graduate, the word used is promotion. 53. But under the J & K Civil Service (CCA) Rules, 1956, Rule 2(e) defines 'member of service' as a person holding or appointed to a whole time pensionable post. Rule 2(f) defines 'period of probation' of a member of the service as the period pr....
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....o the issue of the order of appointment, he may be so appointed with retrospective effect from such data or, as the case may be from such subsequent date from which he was continuously on duty as a member of the service. 54. Under Rule 23, whenever probation is commenced in respect of an officer, it is permissible to appoint him to the service with retrospective effect from such date from which the person was "continuously on duty as a member of the service". Read with Rule 2(e) which define 'member of service' it means the time from which he was "continuously holding the pensionable post" Rule 23 does not make any distinction between different modes of recruitment. It is well settled that in the case of a direct recruit, the probation can commence only from a date after his selection and he can hold a permanent vacancy only after such selection. According to service jurisprudence (see in fact, discussion under Point 4), a direct recruit cannot claim appointment from a date much before his selection. So far as a promotee and also one who is recruited by transfer, are concerned, before such persons are appointed as members of the service under Rule 23, f....
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....ve seniority in the lower service, class, category or grade; (b) in the case of those recruited direct (except those who do not join their duties when vacancies are offered to them) according to the positions attained by and assigned to them in order of merit at the time of competitive examinations or on the basis of merit and ability and physical fitness etc., in case no such examination is held for the purpose of making selections; (c) as between those promoted and recruited direct, by the order in which appointment have to be allocated for promotion and direct recruitment as prescribed by the rules. Note:.... It has to be noticed that the interpretation clause below Rule 24 is very wide and under that provision, seniority of a promotee depends on the date of the commencement of probation on a clear vacancy. Probation can be commenced in the case of a person promoted or recruited by transfer from the date of existence of a clear vacancy in the promote/transfer quota and depending upon his eligibility, suitability based on ACRs. 56. Rule 25 deals with temporary and regular promotions. It reads as follows: (1) All promotions shall be made by the appointing authority (2) ....
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....recruited by transfer and kept in mind delay only in cases of appointments under Rule 14. 59. Thus, the stop-gap/ad hoc or temporary service of a person appointed by transfer as an Assistant Engineer or by promotion as an Assistant Executive Engineer can be regularised through PSC/DPC from an anterior date in a clear vacancy in his quota, if he is eligible and found suitable for such transfer or promotion, as the case may be, and his seniority will count from that date. Should the services proposed to be regularised have been rendered according to rules? 60. We then come to the crucial point (point IX in written submissions) raised by the direct recruits that if the appointment of a promotee as Assistant Engineer is not according to rules but is a stop gap or ad hoc appointment and if it lasts more than 6 months, it requires consultation with the Commission under Regulation 4(d)(ii) of the P.S.C Regulations and if there is no consultation such service is ''not according to rules' and cannot be regularised, i.e. even by consulting the Service Commission at a later stage, and in spite of such service being rendered within promotion quota, subject to eligibility and sui....
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....e beyond six months to the P.S.C. for years. It is one thing to say that the ad hoc service of a promotee does not count for seniority till regularised after consulting the Service Commission and another thing to say that it cannot, under any circumstances be regularised. In as much as the consequence of non-consultation with the Commission is not stated in the Regulation 4(d)(ii) of the P.S.C. Regulations 1957, and no penal consequences are mentioned, such service within quota subject to eligibility and suitability cannot be ignored when power is exercised under Rule 23. Overwhelming authority of this Court to say that ad hoc/stop gap service of promotees can be regularised: 64. This principle is supported by ample authority. Procedural inaction towards promotees, it has been held, can be "rectified". This is explained in the three Judge Bench case in State of West Bengal v. Aghore Nath Dey (1993)IILLJ475SC . In that Judgment propositions A and B laid down in Direct Recruit Case [1990]2SCR900 were explained by Verma, J. (as he then was). It was pointed out that proposition A where it was held that the ad hoc service would not count was one where the same was stop gap (....
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....oth cases by order of the Chief Engineer dated 3.7.67. This Court held that the respondent-promote officers would be senior to the appellant even though the appellant was appointed substantive as a direct recruit on 18.7.66 and the respondents were on that date working only in a temporary capacity from 14.8.59 and 19.5.60 but once their services were regularised by order dated 3.7.67 (passed no doubt after 18.7.66) it could take effect from anterior dates. It will be noticed that even in the above case, the regularisation was not of the entire temporary service of the promotees from 14.8.59 and 19.5.60 but only from 19.5.61 in both cases. In other words when the promotees Assistant Engineers were filled, based on their qualifying service and availability of vacancies in their quota, post of the temporary service before 19.5.61 was lost and was not counted. 66. Again, in respect of the same Rule 23(a) of the Andhra Pradesh Rules, this Court observed in State of A.P. v. K.S. Muralidhar 1992]1SCR295 that there can be no objection under the said rule for retrospective regularisation. 67. Similar is the position in M. Janardhan v. State of AP (1994)IILLJ547bSC There adverting to Rule ....
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....would get regularisation from date of occurrence of vacancy in promotion quota. Before that, it would be fortuitous. Of course, excess promotees could not claim seniority if the quota rule had not broken down because they occupy the seats of direct recruits. In Rajbir Singh v. Union of India AIR1991SC518 , the ad hoc promotion was in 1975 and the subsequent regularisation was in 1986 and it was held that the period of ad hoc service could be counted. In A.N. Sehgal v. Raje Ram Sheoran 1992CriLJ608 , it was held that the promotees whose services were regularised could count their earlier service from the date of availability of a post within their quota but the earlier period between the starting point of ad hoc promotion and the date of occurrence of the vacancy could not be counted. In S.L. Chopra v. State of Haryana [1991]2SCR221 it was held that promotee service would count from date of availability of post within quota and service before that dates would be fortuitous. In Syed Khalid Rizvi v. Union of India (1993)ILLJ887SC , it was held that the service of promotee would count from date of allotment to select list but the period prior thereto would not count. In Keshav Dev v. S....
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....is case far from supporting the direct recruits, supports the promotees. 73. Similarly, K. Siva Reddy v. State of A.P. [1988]3SCR18 cannot also be of any help. It was there held that the retrospective regularisation cannot be resorted to under Rule 23(a) of the Andhra Pradesh Rules if the service is rendered by the promotee is in a post within direct recruit quota. The promotees were to be confined to their quota. This case is distinguishable. 74. Again, Ramendra Singh v. Jagdish Prasad [1984]2SCR598 is distinguishable in as much as it was there held that under executive power, retrospective regularisation cannot be made. That it can be made after consulting the Commission is well settled by various decisions. This ruling too does not advance the case of the direct recruits. Principle that only service "according to Rules " can be regularised applies to direct recruits and not to promotees: 75. Next, the direct recruits and the High Court have relied upon several rulings which say that direct recruits cannot seek benefit of ad hoc service rendered before their regular appointments. 76. These rulings cannot be applied to the case of promotees. In fact the principle la....
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....election and are therefore distinguishable and could not have been relied upon to deprive the promotees of their ad hoc service. Promotees cannot seek regularisation of ad hoc service in certain situations: 78. 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/stop 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 regularisation was passed or were not having the required experience. In C.K. Antony v. B. Muraleedharan (1999)ILLJ572SC , 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 elabora....
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....ion. Such service outside promotee quota cannot count for seniority. Service of promotees which is regularised with retrospective effect from date of vacancies within quota counts for seniority. However, any part of such ad hoc/or stop gap or even regular service rendered while occupying the direct recruitment quota cannot be counted. Seniority of promotees or transferees is to be fixed as per quota and from date of commencement of probation/or regular appointment as stated above. Seniority of direct recruit is from the date of substantive appointment. Seniority has to be worked out between direct recruits or promotees for each year. We decide point 3 accordingly. Point 4: direct recruits cannot claim appointment from date of vacancy in quota before their selection: 81. We have next to refer to one other contention raised by the respondents-direct recruits. They claimed that the direct recruitment appointment can be ante-dated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, wh....
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....isional seniority list of Assistant Engineers is prepared. Promotions can be made, subject to review. After receiving objections, the provisional list shall be finalised as stated above and a final seniority list will be issued. Pending issue of final seniority list of Assistant Engineers there will be no reversions of Assistant Engineers already promoted as of today. Once the list is finalised, there will be a review of all promotions to the category of Assistant Engineers in respect of all promotions made to that category. Thereafter, a provisional seniority list will be issued in the category of Assistant Executive Engineers within one month of the final list of the Assistant Engineers and objections will be called for. The stay granted by us of further promotions of Assistant Executive Engineers shall then stand vacated. There will be no reversions of Assistant Executive Engineers already promoted till final seniority list Assistant Executive Engineers is published. Their final list will be published within two months after the last date for filing objection to the provisional list. certain general directions to the State of J & K for the future: 85. Apart from the above speci....