Suraj Parkash Gupta And Others v. State Of J&K And Others

M. Jagannadha Rao, J.— Leave granted in all the special leave petitions.

2. These civil appeals arise out of several writ petitions filed in the High Court of Jammu & Kashmir in which a common judgment was delivered on 14-12-1998. The judgment of the High Court deals with power of the Government to appoint officers on promotion temporarily for periods of more than six months without consulting the Public Service Commission, grant of seniority to such promotees in respect of service within their quota and also outside the 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/stopgap service of promotees could not be regularised. A contention was also raised before us by the direct recruits that stopgap 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 No. 522 of 1990 was filed in the High Court by the direct recruit Assistant Engineers of the Mechanical Department to fix seniority and to declare that they were entitled to the posts 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 SWPs Nos. 227 of 1997 and 47 of 1998 were filed by direct recruit Assistant Engineers (Electrical) seeking the quashing of the government order dated 12-12-1997 containing the seniority list and also to quash the government order dated 2-1-1998 whereby services of several ad hoc promotee Assistant Engineers of the Electrical Wing were regularised. They sought a further direction for issuing a fresh seniority list and for promotion as per quota and a direction not to fill up the posts of Assistant Executive Engineers from among the promotee quota till seniority as per quota was fixed. CWPs Nos. 824-B of 1994 and 1869 of 1997 were filed by the direct recruit Civil Engineers (Hydraulic) for fixing seniority as per the recommendations of the Committee constituted by the Government by its order dated 31-2-1997 and for a direction not to promote promotee Assistant Engineers as Assistant Executive Engineers till a final seniority list was prepared.

4. SWPs Nos. 705 and 777 of 1994 were filed by the promotee Assistant Engineers (Mechanical) to quash the seniority list of Assistant Engineers dated 28-4-1994 and for issuance of fresh seniority list according to the date of appointment, irrespective of quota. Similar relief was claimed by the promotee Assistant Engineers in SWP No. 777 of 1994. SWP No. 198 of 1993 was filed by the promotee Assistant Engineers (Mechanical) claiming seniority over direct recruits.

5. The High Court in its impugned common judgment dated 14-12-1998 dismissed the petitions filed by the promotees namely SWPs Nos. 198 of 1993, 705 and 777 of 1994 and it allowed the writ petitions filed by the direct recruit Assistant Engineers namely SWPs Nos. 522 of 1990, 824-B of 1994, 227, 1869 of 1997 and 47 of 1998.

The facts

6. The following facts are relevant:

There are three wings of Engineers working in the various departments of the Government of Jammu and Kashmir — Mechanical, Electrical and Civil Engineering. The posts in these three wings at various levels are of Junior Engineers, Assistant Engineers and Executive Engineers. The recruitment to the posts of Assistant Engineers, as per the J&K Engineering (Gazetted) Service Recruitment Rules, 1978 (hereinafter called “the Recruitment Rules, 1978”) provided that 20% posts were to be filled by direct recruitment, 60% by promotion of Junior Engineers who had degrees or equivalent qualification with 3 years' service and 20% by diploma-holders or those holding post carrying scale of Rs 340-700/450-700 etc. with 10 years' service.

7. In 1987, with a view to remove stagnation, the Government issued two orders, one on 29-6-1987 and another on 29-10-1987, the latter in supersession of the former and reorganised the service as follows: (a) the existing post of Assistant Engineer was upgraded and redesignated 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 No. 209 of 1992 on 4-9-1992, 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.

8. Thereafter, the 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 the Government issued orders continuing these ad hoc/stopgap appointments till regularisation. This was done without consultation of the Public Service Commission as required by Regulation 4(d)(ii) of the Service Commission Regulations, 1957. These orders included some in which several Junior Engineers were promoted as ad hoc Assistant Engineers in the three wings of the Engineering Department (and also related to ad hoc promotions as Assistant Executive Engineers). This was done without following the rules for promotion of the Junior Engineers as Assistant Engineers which required consultation with the J&K Public Service Commission under Section 133 of the J&K Constitution (corresponding to Article 320 of the Constitution of India) or other rules. (The promotion as Assistant Executive Engineer required consultation with DPC.) It was the case of the direct recruits, that these ad hoc promotions were made not only against the 80% (60% + 20%) quota of the promotees but also in respect of 10% out of the 20% quota of direct recruits, in total breach of the quota rule. Direct recruitment was indefinitely delayed to benefit promotee officers and even when it was initiated, it was restricted to 10%.

9. It appears that the last direct recruitment in these wings was way back in 1984. It was only on 23-11-1987 that the State Government referred to the State Public Service Commission the matter relating to direct recruitment. But instead of referring the matter of filling up the quota up to 20%, the reference was confined only to 10%. The advertisement was issued by the Commission on 3-12-1987. The respondents before us (who were direct recruit writ petitioners in the writ petitions before the High Court) applied for direct recruitment. But for a period of 4 years, the Commission did not take any steps to make recommendations. The candidates were interviewed during 1992-93 and a list of selected candidates was sent to the Government for the 10% quota of direct recruits. It was only after the High Court gave directions on 22-2-1994 in certain writ petitions and on other dates in other petitions, that the direct recruits were appointed on various dates in 1994 as Assistant Engineers. Some direct recruits were appointed much later.

10. The direct recruits filed various SWPs Nos. 522 of 1990, 824-B of 1994, 227, 1869 of 1997 and 47 of 1998 challenging the ad hoc promotion of the Assistant Engineers made by the Government without consulting the Service Commission beyond six months and contended that continuance of ad hoc/stopgap promotion beyond six months (as per the order issued during 1987 to 1996) was non est and void and could not be subject to 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 SWPs Nos. 98 of 1993, 705 and 777 of 1994 and in the two latter petitions, the seniority list dated 28-4-1994 was questioned to the extent it was favourable to the direct recruits.

The High Level Committee

11. The Government appointed a High Level Committee on 21-5-1997 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:

(i) as and when the direct recruitment was made, the direct recruits would be entitled to placement of their seniority to the vacancies reserved for them as per the ratio. Similarly, where the promotees came to be promoted in accordance with the Rules “in excess of their quota”, they could not be given seniority but should be given seniority only from the respective dates on which the vacancies in their quota were available;

(ii) seniority had to be determined only “from the respective dates on which their respective quota became available in a particular year”;

(iii) ad hoc/stopgap appointment would not entitle an individual to the benefit of seniority from the date of such ad hoc/stopgap appointment, such service not being according to rules. The period of officiation could not be taken into account for seniority. The continuous length of ad hoc service could not be so counted.

The order dated 2-1-1998 by the Government regularising promotees' services without consulting PSC

12. Ignoring the above report of the above Committee, and without any recommendation of the Public Service Commission for retrospective regularisation, the Government issued, during the pendency of the writ petitions, an order on 2-1-1998 so far as the Electrical Wing was concerned, stating that ad hoc service of officers in various categories — (starting from Junior Engineers to Superintending Engineers) right from 25-5-1973 to 18-4-1996 — would stand regularised at various levels of the service including Assistant Engineer and Assistant Executive Engineer levels, as a “one-time exception”. This order dated 2-1-1998 covered several Assistant Engineers in the Electrical Wing wherein ad hoc promotions were made. The regularisation was ordered subject to:

(a) the seniority of the officers concerned which will be fixed according to the Rules;

(b) the outcome of writ petition, if any, pending in the courts.

The writ petitions

13. The above order dated 2-1-1998 was questioned by the direct recruits in the High Court along with other seniority lists. It was contended for the direct recruits before the High Court that there was quota and rota, that the entire ad hoc service was to be treated as non est, whether it was rendered within the promotion quota or outside the said quota and stopgap/ad hoc service of promotees could not be regularised at all. But the promotees contended that there was no rota, that the quota rule had broken down and the entire ad hoc service as Assistant Engineers could be counted or regularised by the Government.

The findings of the High Court

14. 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 J&K 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 that in SWP No. 824-B of 1994 filed by the direct recruits, the Government filed a reply stating that there was “quota-rota” rule and therefore the said rule applied. The seniority list dated 28-4-1994 in the Mechanical Wing — which was sought to be quashed in SWP No. 705 of 1994 by the promotees showed that the quota rule had not broken down. The State had not placed before the Court any material to show why it could not make direct recruitment. The excess promotees had to be pushed down and had to be fitted in subsequent vacancies in their quota in the later years. On the second point, the High Court held that ad hoc promotions could be made for three months and not more than 9 months under Rule 14(1) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 [read with Regulation 4(d)(ii) of the J&K Public Service Commission (Limitation of Functions) Regulations, 1957]. Ad hoc service beyond 6 months could not have been continued. But in view of Regulation 4(d)(ii), “if the exercise of selection of candidates has not been done by the Commission for regularisation” the promotees were not entitled to seniority. Under Rule 8 of the Recruitment Rules, 1978 probation was to be for 2 years. Hence, an ad hoc promotee could not be a “member” of the service. To claim seniority the promotion could not be dehors the rules. Conditions of service could be relaxed but rules of recruitment could not be relaxed. The order of blanket regularisation of the promoted Assistant Engineers dated 2-1-1998 for the Electrical Wing passed by the Government was in violation of Regulation 4(d)(ii) and was bad. Such orders passed under executive powers were outside the Rules and were invalid. On the third point, the High Court held that seniority under Rule 11 of the 1978 Rules was to be determined in accordance with Rule 24 of the 1956 Rules on the basis of “date of first appointment” i.e date of “substantive appointment or date of permanent appointment or date of first appointment on probation against a clear vacancy”. Inasmuch as regularisation of ad hoc promotions by the Government on 2-1-1998 was illegal, the promotees were not members of the service. The order dated 2-1-1998 could not have the effect of regularising the entire ad hoc service. The direct recruits could however count their seniority from the date of their substantive appointment within their quota. However, the claims of the promotees whose stopgap 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

15. 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 12-5-1999 in IAs Nos. 3 and 4 in SLPs Nos. 5329-30 of 1999 that the stay order dated 7-4-1999 did not imply any right to effect promotions during the pendency of the SLPs. It was directed that status quo be maintained.

16. During the course of hearing of the case, at one stage counsel made some efforts to narrow down the disputes between the two groups by discussion but ultimately all the points arising between the parties were argued elaborately and thoroughly.

17. The written submissions by both the 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 to be apparently conflicting — we have thought it necessary to refer to most of the relevant rulings. This has no doubt added to the volume of this judgment but it could not be helped.

18. On the basis of the various submissions, the following points arise for consideration:

The points

(1) Can the promotees, for recruitment to the gazetted service, avoid the Public Service Commission? Can the government order that the entire ad hoc/stopgap service of Assistant Engineers and Assistant Executive Engineers be counted for seniority and can the order of regularisation dated 2-1-1998 passed by the Government (in respect of the Electrical Wing) be treated as amounting to an implied relaxation of the rules of recruitment requiring consultation with the Service Commission? Whether relaxation of the Recruitment Rule is permissible?

(2) Whether the quota rule had broken down? Whether excess promotees are to be pushed down? Whether there is a quota-rota rule?

(3) Whether the ad hoc/stopgap promotion of Assistant Engineers (and Assistant Executive Engineers) could be made beyond six months and till regularisation, by the Government without consulting the Public Service Commission? Whether the Government could have regularised the ad hoc service by executive order dated 2-1-1998? Whether the point raised in para IX of the written submissions by the direct recruits that retrospective regularisation cannot be made in respect of the ad hoc/stopgap service and could be made only if the initial appointment as Assistant Engineers or Assistant Executive Engineers was “in accordance with rules”, is correct?

(4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?

(5) To what relief?

Point 1

19. This point deals with the question whether the promotees can avoid going through the Service Commission for recruitment to the gazetted cadre. This raises the question of the validity of the order dated 2-1-1998 of retrospective regularisation of the entire ad hoc service of promotees as Assistant Engineers and Assistant Executive Engineers passed by the Government, (in relation to the Electrical Wing) without the approval of the Public Service Commission and whether relaxation can be implied. The question arises whether it is permissible to relax recruitment rules.

Implied relaxation of Recruitment Rule relating to promotion — plea as to

20. Learned Senior Counsel appearing for the promotee Assistant Engineers contended that the order dated 2-1-1998 regularising the ad hoc/stopgap service passed by the 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 the 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

21. For the purpose of the above argument, the promotees relied on the following Rules:

Rule 13 of the 1978 Recruitment Rules states that in respect of residuary matters (i.e “matters not specifically covered by the said Rules”), the members of the service shall be governed by the Rules, Regulations and Orders applicable to the State/Civil Services in general. Therefore, Rule 5 of the J&K Civil Services (CCA) Rules, 1956 is attracted. It permits relaxation of the Rules. It reads:

“5. Any of these Rules or Rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases, if Government is satisfied that a strict application of the Rule would cause hardship to the individual concerned or confer undue benefit on him.”

22. Further, Rule 5(4) of the Recruitment Rules, 1978 states that: “In case suitable candidates are not available for promotion, the posts shall be filled up by direct recruitment and vice versa.” In view of the words “vice versa”, the promotees contend that if suitable direct recruits are “not available”, the direct recruit quota can be filled up by promotees. Direct recruitment was not made for several years and hence it was clear that suitable direct recruits were “not available” as required by proviso to Rule 5(4) of the Recruitment Rules, 1978.

23. The quota between direct recruits and promotees is governed by Rule 5(2) of the 1978 Rules which states that appointment to a service shall be made by (a) direct recruitment, (b) by promotion/selection, and (c) partly by direct recruitment and partly by promotion, in the manner and ratio as indicated against each post in the Schedule. The quota of 20% for direct recruit Assistant Engineers and 60% for graduate Junior Engineers and 20% for non-graduates in the lower category is provided in the Schedule. Further, Rule 11(1) of the abovesaid Rules of 1978 states that seniority will be regulated under the provisions of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. The proviso to Rule 11(3) states that the seniority in a particular year is to be determined as per ratio. It says:

“Provided further that the seniority of Assistant Engineers by direct recruitment and by promotion shall, in a particular year be determined, in the ratio fixed for direct recruitment and promotion.”

24. The relaxation rule, namely, Rule 5 of the J&K (CCA) Rules, 1956 referred to earlier, enables the power of relaxation to be exercised on the ground of “hardship” in “individual cases”. Reasons have to be recorded in writing.

Reasons for so-called relaxation of Recruitment Rules — Cabinet decision of 19-12-1997

25. As to the reasons for relaxation of the recruitment rule of promotion requiring consultation with the Commission, counsel for promotees referred to us the Cabinet decision preceding the issuance of the blanket regularisation order dated 2-1-1998. It is dated 19-12-1997. 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 the 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 PSC/DPC would take a 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 adversely affected the promotees and the only remedy was to regularise their promotion in relaxation of rules from the date they were promoted on ad hoc basis against substantive vacancies without prejudice to seniority to be fixed in accordance with the “rota and quota” rules. It opined that all those who had held the post uninterruptedly for 6 months (originally the Law Department said 2 years) or more and had rendered “satisfactory service” could be regularised in relaxation of rules. But the General Administration Department was however of the view that this relaxation proposal should be placed before PSC/DPC and clearance obtained. The matter was therefore referred to PSC which instead of considering the proposal, requested by its letter dated 25-11-1997 for various documents:

(1) final seniority list;

(2) eligibility list on prescribed form;

(3) APRs of all Engineers for the relevant period;

(4) integrity certificate;

(5) information regarding court orders; and

(6) copy of the Rules, for the purpose of considering regularisation under the Rules.

But rejecting the said letter of PSC, the Cabinet straight away directed relaxation as a “one-time exception”, stating that:

“Due to the reasons that the finalisation of seniority list, collecting APRs of all Engineers for the relevant period, obtaining date of eligibility/date of vacancy, one is expected to take a very long time and may even be impossible in very old cases. When this Department places these Engineers in charge of higher posts, there must have been clear vacancies.

Hence, information required by PSC cannot be prepared and the matter would stand further delayed, defeating the very purpose of this proposal. Accordingly, it is proposed that regularisation of all ad hoc/stopgap/in-charge promotions, may be approved as a ‘one-time exception’.”

On the above reasoning, by a single stroke of the pen, by the above order dated 2-1-1998 such stopgap/ad hoc promotions made in respect of the Electrical Wing, from time to time were regularised including those at the level of Assistant Engineers and Assistant Executive Engineers. It was no doubt stated that this would be subject to:

“(a) the seniority of the officers concerned which will be fixed according to the Rules;

(b) the outcome of writ petitions, if any, pending in the courts.”

It may be noted that the order of the Government dated 2-1-1998 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

26. 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) 2 SCC 189, (1990) 12 ATC 745 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

27. The promotees relied upon the ruling in G.S Lamba v. Union of India (1985) 2 SCC 604 but the said decision cannot, in our view, apply. There the promotees were appointed regularly but were allowed to occupy the posts of direct recruits for long periods. It was held that it must be deemed that the relevant Recruitment Rule was relaxed in their favour and their service in such direct recruit posts could be counted. This case in our view is distinguishable because there the promotees were regular promotees though appointed outside the promotee quota. The position before us is different because here the promotees are ad hoc promotees and further the issue relates to all posts, within and outside the promotion quota. Narender Chadha v. Union of India (1986) 2 SCC 157 no doubt supports the case of the promotees. There the promotees occupied not only their own quota but also the direct recruitment quota to some extent. After 15 to 20 years, the temporary service of those who had put in 4 years' service in the feeder category was regularised. It was held that all the promotees were entitled to regular promotion and the seniority of all promotees (including some of those selected by DPC) was to be reckoned from the date of continuous officiation. This was done on the theory of implied relaxation of recruitment rule to all posts within and outside the promotion quota. But this case, in our view, is to be treated as an exception because the promotees there were not regularised for 15 to 20 years (see p. 171) and it was held that the non-regularisation over such a long period violated Articles 14 and 16 of the Constitution of India. It is no doubt true that the Constitution Bench in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra (1990) 2 SCC 715, (1990) 13 ATC 348 referred to Narender Chadha case (1986) 2 SCC 157 (see at p. 726, para 13) and observed: “There is considerable force in this view also.” But as we shall presently show, the recent trend of cases in this Court is entirely different.

Recent trend of cases — Recruitment Rules cannot be relaxed

28. The decisions of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment. In Keshav Chandra Joshi v. Union of India 1992 Supp (1) SCC 272, (1993) 24 ATC 545 the Rule permitted relaxation of the conditions of service and it was held by the three-Judge Bench that the Rule did not permit relaxation of Recruitment Rules. The words “may consult PSC” were, it was observed, to be read as “shall consult PSC” and the Rule was treated as mandatory. In Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575, (1994) 26 ATC 192 (SCC at p. 603) 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 the “Rules”. Even so, this Court refused to imply relaxation of Recruitment Rule and observed:

“The condition precedent, therefore, is that there should be an 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.”

(emphasis supplied)

29. Similarly, in State of Orissa v. Sukanti Mohapatra (1993) 2 SCC 486, (1993) 24 ATC 259 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 a direct recruit could not be treated as regular service. Similarly, in M.A Haque (Dr) v. Union of India (1993) 2 SCC 213, (1993) 24 ATC 117 it was held that for direct recruitment, the rules relating to recruitment through the Public Service Commission could not be relaxed. In J&K Public Service Commission v. Dr Narinder Mohan (1994) 2 SCC 630, (1994) 27 ATC 56 it was held that the provisions of the J&K Medical Recruitment Rules could not be relaxed for direct recruitment. The backdoor direct recruitments, could not be permitted. (See also Arundhati Ajit Pargaonkar (Dr) v. State of Maharashtra 1994 Supp (3) SCC 380, (1994) 28 ATC 415.) In Surinder Singh Jamwal (Dr) v. State of J&K (1996) 9 SCC 619 this Court directed the direct recruits to go before the Public Service Commission.

Decisions cited for promotees distinguishable

30. Two decisions which have been referred to by counsel for the promotees have to be referred to but these can be distinguished. In V. Sreenivasa Reddy v. Govt. of A.P 1995 Supp (1) SCC 572, (1995) 29 ATC 495 there was an order of relaxation in favour of the promotees who were not regularised under Rule 23 of the A.P State and Subordinate Service Rules. In that case this Court felt that the Government's order relaxing the requirement of consultation with the Commission need not be interfered with because the promotees were placed by the Government below the direct recruits. This case is therefore clearly distinguishable. (We shall be referring to this case again under Point 3.) Again in Ashok Kumar Uppal v. State of J&K (1998) 4 SCC 179 while holding that the power of relaxation could not be arbitrarily exercised, this Court upheld the relaxation of the relevant standard prescribed for typing, in respect of five direct recruits. This was because the State Recruitment Board in that case had made a recommendation for relaxation of the requisite standard in their favour and this was accepted by the Government. The relaxation was upheld because the Government had retrospectively amended the promotion rules so that the promotees could just go into the promotion quota by sheer seniority rather than by selection as was the rule earlier. The five direct recruits were very close to the other selected direct recruits and were more meritorious than the promotees.

Summary

31. The result of the discussion, therefore, is that the wholesale regularisation by order dated 2-1-1998 (for the Electrical Wing), by way of implied relaxation of the Recruitment Rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, the power under Rule 5 of the J&K (CCA) Rules, 1956 to relax the Rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment.

On facts, relaxation bad

32. On facts, the reasons given in the Cabinet note for granting relaxation are hopelessly insufficient. In fact, the letter of the Commission dated 25-11-1997, 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 therefor. The relevant Recruitment Rule for promotion cannot itself be treated as one producing hardship. Narender Chadha case (1986) 2 SCC 157 must be treated as an exception and not as a rule. In fact, if such relaxation is permitted in favour of the promotees then the same yardstick may have to be applied for direct recruits. In fact the J&K Government has already started to do so and this has not been accepted by this Court in Narinder Mohan case (1994) 2 SCC 630, (1994) 27 ATC 56 and Dr Surinder Singh Jamwal case (1996) 9 SCC 619 referred to above. If it is to be held that direct recruitment can also be permitted without consulting the Service Commission (in case it is required to be consulted there will, in our opinion, be total chaos in the recruitment process and it will lead to backdoor recruitment at the whims and fancies of the Government). Such a blanket power of relaxation of Recruitment Rules cannot be implied in favour of the Government.

33. In the present case, the Government was merely carried away by sympathy for the promotees. By not making direct recruitment after 1984, by restricting direct recruits to 10% rather than permitting 20% and by deliberately promoting the Junior Engineers to the other 10% quota of the direct recruits, the State Government had definitely acted in a biased manner. There is an amount of justification for the grievance of the direct recruits that the State had passed an omnibus order on 2-1-1998 regularising all ad hoc promotees (Electrical Wing) without consulting the Commission, by way of deemed relaxation, in a wholly arbitrary manner, counting the entire ad hoc service of promotion. Their illegal occupation of direct recruitment quota was not even noticed. Their eligibility or suitability was not considered. It is probable that even those who had bad ACRs were regularly promoted. The requirement of following the quota for each year was not respected. The regularisation order dated 2-1-1998 was therefore bad and was therefore rightly quashed by the High Court. [This declaration is confined to Assistant Engineers and Assistant Executive Engineers (Electrical Wing) — as stated under Point 2 of the High Court's judgment.] We confirm the view of the High Court on this point. The result is that the promotees have to go through the Service Commission for getting into the gazetted category of Assistant Engineers. The Assistant Engineers have to go through DPC for promotion as Assistant Executive Engineers. Point 1 is decided accordingly.

Point 2

34. This point concerns the question as to whether the quota rule has broken down and whether there is a quota-rota rule. The High Court held it did not.

35. Reliance is placed by the promotees on the decision of the Constitution Bench in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra (1990) 2 SCC 715, (1990) 13 ATC 348. It laid down in propositions (D) and (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 was impossible to do so the inference is irresistible that the quota rule had broken down.

(E) When the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.”

(emphasis supplied)

The above decision deals with a situation where the quota rule had broken down and regular promotees whose service was regularised were posted in the direct recruitment quota. In that event, it is permissible to count that service for the purpose of seniority of the promotee. But that is the position when the quota rule breaks down.

Quota rule has not broken down

36. On the question of breakdown of quota rule, except the lethargy of the State Government and its inaction and its not asking the Service Commission to make direct recruitment, no other cause is visible. The Cabinet note only stated that because the reference to PSC would take a long time, the ad hoc services of the promotees were to be regularised. The delay on the part of the Government appears to us to be motivated for the purpose of blocking the quota of the direct recruits and giving a part of it to the promotees. We have noticed that when a very belated decision was taken to make direct recruitment, the same was restricted to 10% rather than to the statutory quota of 20%. This attitude on the part of the State was not reasonable.

37. Further under Rule 5(4) of the Recruitment Rules, 1978 it is provided that in case suitable candidates are not available for promotion, the posts shall be filled up by direct recruitment and vice versa. Thus, there must be evidence that suitable candidates were “not available” for direct recruitment. Such non-availability cannot be inferred when, as a fact, not even a reference is made to the Commission to find out if upon advertisement, anybody will respond. Thus there is no breaking down of the quota rule.

38. That in such situations there can be no breakdown of the quota rule is clear from the decided cases. In N.K Chauhan v. State of Gujarat (1977) 1 SCC 308 the rule said that “as far as practicable”, the quota must be followed. Krishna Iyer, J. said that there must be evidence to show that effort was made to fill up the direct recruitment quota. It must be positively proved that it was not feasible, nor practicable to get direct recruits. The reason should not be “procrastinatory”. In Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575, (1994) 26 ATC 192 it was held that mere non-preparation of select list does not amount to collapse of the quota rule. In M.S.L Patil v. State of Maharashtra (1996) 11 SCC 361 it was held that mere omission to prepare lists did not amount to breakdown of quota rule.

39. One other significant fact is that the Cabinet note dated 19-12-1997 only states that cases of the ad hoc promotees if referred to PSC, will take a long time for getting the necessary recommendation. But nowhere is it said that direct recruitment was not possible or that direct recruits were not available or such recruitment had become impracticable. For the aforesaid reasons, we hold that the quota rule has not broken down.

Rota — no express rota rule

40. 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

41. 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 No. 824-B of 1994. Reliance is also placed on the Cabinet note of December 1997 where the view of the Law Department that quota-rota rule is to be applied, is referred to.

42. 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) 1 SCC 308 by Krishna Iyer, J. there is no question of a quota being necessarily “interlocked” with rota. It is not necessarily inscribed within every quota rule. Again in B.S Yadav v. State of Haryana 1980 Supp SCC 524, (1981) 1 SCR 1024 Chandrachud, C.J held that a “quota” does not imply a rota. The first part of the contention of the direct recruits is without any substance.

Rota cannot be brought in only because of past practice

43. So far as the second part of the contention that there has been previous practice, we may refer to L. Chandrakishore Singh v. State of Manipur (1999) 8 SCC 287, JT (1999) 7 SC 576( : JT at p. 593). There it was held that a practice must be consistent with rules and that a practice not consistent with rules is not acceptable. In that case, the practice of not considering for promotion probationers and considering only confirmed candidates was held not consistent with the Rules and could not be permitted. Similarly, in D. Stephen Joseph v. Union of India (1997) 4 SCC 753 it was held that a past practice which was dehors a rule could be of no help. The question in that case was as to whether the requirement of particular years of service with graduation for promotion meant service after graduation or service during which a degree qualification was acquired. A practice of counting three years after obtaining qualification was not accepted. In that view of the matter, the second part of this contention also goes.

44. Hence, it must be held that there is no rota coupled with quota but that there is only a quota rule. Point 2 is decided accordingly.

Point 3

45. This point is crucial. The point here is whether the Government could have continued the ad hoc/stopgap service of promotees beyond six months and till regularisation without consulting the Commission and whether the Government could have regularised without such consultation. Point also is whether as contended in para IX of the written submissions of the direct recruits, the retrospective regularisation of the service of the promotees is not permissible unless the original promotion is “in accordance with rules”.

Ad hoc/stopgap service beyond six months requires PSC consent — Government cannot regularise the period without consultation

46. In our view, the High Court was right to the extent it held that the Rules did not permit continuance of the ad hoc/stopgap promotion beyond six months and the Government could not have continued the ad hoc/stopgap promotion till regularisation without consulting 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 2-1-1998 of the regularisation of the entire ad hoc service without consulting the Commission.

Regularisation of ad hoc/stopgap service under Rule 23 — the contention of direct recruits and the High Court's view

47. 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 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 of such promotees could be regularised if the Service Commission was consulted.

48. But the High Court again stated at a later stage that the ad hoc/stopgap service rendered by promotees could not be regularised and for that proposition it relied upon several rulings of this Court. But those decisions, as we shall show a little later were cases where it was held that a direct recruit could not count his ad hoc service rendered prior to the date of selection. Those rulings cannot be applied, as shown below to the cases of promotees for holding that ad hoc/stopgap service of the promotees could not be regularised. If the High Court meant that such service could not be regularised under Rule 23 — at least to the extent when vacancies arose in the promotee quota, subject to eligibility and suitability of the promotees based on ACRs etc. — we are of the opinion, for reasons to be given below, that the said view of the High Court is wrong and runs counter to the overwhelming authority of this Court that such service of promotees could be regularised in the posts relatable to the promotee quota provided PSC/DPC was consulted and subject to eligibility etc.

49. Perhaps based on the above view of the High Court, the direct recruits have raised a point in their written submissions in para IX as follows:

“Even where rules permit ante-dating of probation, the service rendered in stopgap arrangement cannot be counted towards seniority. Discretion to ante-date 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 stopgap service towards seniority.”

Rules relating to retrospective regularisation permit regularisation of ad hoc/stopgap service of promotees

50. 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 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 the 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 in the Schedule when it deals with 60% quota for graduate Junior Engineers and 20% quota for non-graduates, the word used is “promotion”.

51. But under the J&K Civil Services (CCA) Rules, 1956, Rule 2(e) defines “member of service” as a person holding or appointed to a wholetime pensionable post. Rule 2(f) defines “period of probation” of a member of the service as the period prescribed in the Rules. Rule 2(g) defines “probationer” as a person appointed to a service who has not been declared to have satisfactorily completed his probation. Rule 2(h) defines “promotion” as the “appointment” of a member of a service or class or service in any category or grade, to a higher category or grade of such service or class. Rule 2(i) defines a person “recruited direct” as one recruited otherwise than by promotion or by transfer. Rule 2(j) defines “recruitment by transfer” as one where at the time of his “appointment” thereto, he is either a member/probationer in another service. Rule 9 refers to “first appointment” as (a) one by promotion or by transfer, and (b) by direct recruitment, or (c) partly by (a) or partly by (b). Rule 14(1) deals with “temporary appointment” not exceeding three months at a time and under Rule 14(3), the temporary appointee is to be replaced by a member of the service or a candidate qualified and considered fit to hold the post under the 1956 Rules. Rule 14(4) says that a temporary appointment will not be regularised as a probationer nor will he have any preferential claim for future appointment. Rule 15, which follows Rule 14 permits commencement of probation from an anterior date and it reads as follows:

“15. If such person is subsequently appointed to such service, class or category in accordance with these Rules, he shall commence his probation therein from the date of such subsequent appointment or from such earlier date as may be determined by the Minister in charge.”

Thus a person temporarily appointed under Rule 14 can be appointed to the service according to rules from an anterior date. Rule 20 states that no person shall be eligible for confirmation as a member of a service or class, until he has been on probation in such service or class continuously or in the aggregate for a period of two years. Rule 22 deals with declaration of completion of probation. Rule 23 is again important and deals with “appointment of members” with retrospective effect. It reads as follows:

“23. (1) A probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected exists, be appointed to the service at the earliest possible opportunity in the order of seniority, and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from such date or, as the case may be, from such subsequent date from which he was continuously on duty as a member of the service.”

52. 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 defines “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, first their probation must commence. Then such person becomes a probationer for purposes of Rule 23. Once he is on probation, and if a substantive vacancy in the permanent cadre existed in which the promotee or a recruitee by transfer can be accommodated, and if such a vacancy has arisen from a date previous to the issue of the order of appointment (i.e appointment by promotion or transfer) then under Rule 23 he may be appointed to the service (i.e regularly) with retrospective effect from such anterior date (or, as the case may be, from such subsequent date) from which he has been continuing on duty on a non-pensionable (sic pensionable) post [see Rule 2(e) defining “member of service”]. This period can certainly be one that a person holds in a stopgap or ad hoc manner. The order of “promoting a person in the service” regularly from an anterior date and the order of probation from an anterior date can be simultaneously passed. That is how under Rule 23, a person holding a temporary, stopgap or ad hoc appointment beyond three months can become a probationer and get appointed regularly to the service with retrospective effect.

53. Then comes the rule of “seniority”. Seniority is to be determined by the “date of first appointment” to such service, class or category or grade. It reads as follows:

“24. Seniority.—(1) The seniority of a person who is subject to these Rules has reference to the service, class, category and grade with reference to which the question has arisen. Such seniority shall be determined by the date of first appointment to such service, class, category or grade, as the case may be.

Note 1.—***

Interpretation.—The words ‘date of first appointment’ occurring in the above Rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and/or passing of any examination or examinations and/or tests:

Provided that the inter se seniority of two or more persons appointed to the same service, class, category or grade simultaneously, will, notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being posted to different stations, be determined:

(a) in the case of those promoted by their relative 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 appointments 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 promotee/transfer quota and depending upon his eligibility, suitability based on ACRs.

54. Rule 25 deals with temporary and regular promotions. It reads as follows:

“25. (1) All promotions shall be made by the appointing authority.

(2) Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal.

(3)***

(4) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy by promotion from a lower category, and where promotion in accordance with these Rules would involve undue delay or expenditure or cause administrative inconvenience, the appointing authority may promote a person otherwise than in accordance with these Rules temporarily until a person is promoted in accordance with these Rules, but such temporary promotion shall in no case exceed three months on each occasion.

(5) A person promoted under sub-rule (4) shall not be entitled by reason only of such promotion to any preferential claim to future promotion.”

55. A point has been raised by the direct recruits that there is no rule (corresponding to Rule 15) for commencing probation retrospectively in the case of a person promoted or recruited by transfer temporarily under Rule 25.

56. It is true that while Rule 15 permits probation to be commenced from an anterior date in the case of one “appointed” temporarily there is no such clause in Rule 25 dealing with “promotions”. That does not, in our opinion, mean that in respect of a person temporarily promoted or a person temporarily appointed by transfer, probation cannot be commenced from an anterior date. In our view, this power is implicit in Rule 23 itself when it speaks of a probationer being appointed as a member of a service with retrospective effect. Once a promotee or recruitee by transfer is appointed on probation, it is permissible to appoint him under Rule 23 as a member of the service from an anterior date when a substantive vacancy existed in his quota. It is then obvious that such power to make a retrospective appointment of a member implies a power to commence probation of such person from an anterior date when a clear vacancy existed in his quota. We cannot imagine that the rule-making authority did not visualise delays in regularisation of ad hoc or stopgap or temporary service rendered by the promotees or those recruited by transfer and kept in mind delay only in cases of appointments under Rule 14.

57. Thus, the stopgap/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 be rendered according to rules

58. We then come to the crucial point (Point IX in the 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 stopgap 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 PSC 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 the promotion quota, subject to eligibility and suitability.

Plea is not correct on the face of it

59. We are unable to hold that the entire service of a promotee continued beyond 6 months without consulting the Commission must be treated as non est and should stand wiped out altogether and that only service rendered in accordance with rules can be retrospectively regularised.

60. On the face of it, there is a contradiction in this plea for if service to start with is in accordance with rules, it will not come under Rule 25 at all. It will be regular to start with and there is no need for regularisation. The need arises for regularisation only if the service of the promotees is not according to rules to start with.

Regulation 4(d)(ii) does not refer to any penal consequences

61. Regulation 4(d)(ii) of the J&K Public Service Commission (Limitation of Functions) Regulations, 1957 merely states that it shall not be necessary for the Commission to be consulted on the suitability of candidates for

“officiating promotions or transfer to any service or post when at the time of making the promotion or transfer there is reason to suppose that the officiating promotion or transfer will be for not more than six months”.

This Regulation therefore fixes the period of service of such officiating promotee or transferee which need not go before the Commission. It does not however say that if the Commission is not consulted before six months, or where the Commission when consulted within six months does not pass an order of extension before the period of six months, the said service is to be treated as non est. Further, in our view, as already stated, such service can be regularised under Rule 23 of the J&K (CCA) Rules, 1956, by commencing the probation retrospectively and by appointment to the service from a date when a substantive vacancy was available within the quota. It is only in respect of the period of service rendered outside the quota that retrospective regular promotion/recruitment by transfer cannot be made in respect of that part of the service. That would mean that only such service which is rendered by the promotee/transferee-recruitee within his quota, can be regularised. Similarly if he is found not eligible or fit or suitable — though posted in a post within the quota — that service cannot be counted. It is not the employee's fault if the State does not take steps to refer the question of continuance beyond six months to PSC 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. Inasmuch as the consequence of non-consultation with the Commission is not stated in Regulation 4(d)(ii) of the PSC Regulations, 1957 and no penal consequences are mentioned, such service within the 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/stopgap service of promotees can be regularised

62. 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 W.B v. Aghore Nath Dey (1993) 3 SCC 371, (1993) 24 ATC 932. In that judgment propositions (A) and (B) laid down in Direct Recruit case (1990) 2 SCC 715, (1990) 13 ATC 348 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 stopgap (i.e and remained as such). In proposition (B) it was said that ad hoc service could count in certain situations such as where there was only a “procedural” irregularity in making appointments according to rules. In such a situation, the irregularity can be subsequently “rectified”. In such a case such ad hoc/stopgap or temporary service could be counted. Again in Syed Khalid Rizvi case 1993 Supp (3) SCC 575, (1994) 26 ATC 192 it was held by Ramaswamy, J. speaking for the three-Judge Bench that propositions (A) and (B) in Direct Recruit case (1990) 2 SCC 715, (1990) 13 ATC 348 had to be read with para 13 therein. Similarly, in I.K Sukhija v. Union of India (1997) 6 SCC 406 Nanavati, J. explained propositions (A) and (B) by reference to Aghore Nath Dey case (1993) 3 SCC 371, (1993) 24 ATC 932 referred to above.

The Andhra Pradesh cases are based on similar rule — such service can be regularised with retrospective effect

63. Apart from the general principle of law as stated above, there are rulings of this Court on almost identical rules which go against the contention raised by the direct recruits. Rules identical to Rules 15 and 23 of the J&K (CCA) Rules, 1956 have come up for consideration in this Court in cases arising from Andhra Pradesh. These decisions are obviously binding on us. A case directly in point is the one in Desoola Rama Rao v. State of A.P 1988 Supp SCC 221, (1988) 7 ATC 441 The relevant Rule in that case [Rule 23(a)] is similar to Rule 15 and Rule 23 of the J&K (CCA) Rules of 1956. Rule 23(a) of the A.P State and Subordinate Service Rules read as follows:

“23. (a) If a person having been appointed temporarily under sub-rule (a) or sub-rule (c) of Rule 10 to a post borne on the cadre of any service, class or category or having been appointed to any service, class or category otherwise than in accordance with the rules governing appointment thereto is subsequently appointed to any service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine.”

(emphasis supplied)

64. We shall examine the facts closely. Respondents 3 and 4 were temporarily promoted as Assistant Engineers on 14-10-1959 and 19-5-1960 respectively. The appellant was directly recruited on 18-7-1966 as Assistant Engineer. Under Rule 23(a) the services of Respondents 3 and 4 were retrospectively regularised by commencing probation on and from 19-5-1961 in both cases by order of the Chief Engineer dated 3-7-1967. This Court held that the respondent promotee officers would be senior to the appellant even though the appellant was appointed substantively as a direct recruit on 18-7-1966 and the respondents were on that date working only in a temporary capacity from 14-8-1959 and 19-5-1960 but once their services were regularised by order dated 3-7-1967 (passed no doubt after 18-7-1966) 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 14-8-1959 and 19-5-1960 but only from 19-5-1961 in both cases. In other words when the promotee Assistant Engineers were filled, based on their qualifying service and availability of vacancies in their quota, part of the temporary service before 19-5-1961 was lost and was not counted.

65. 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) 2 SCC 241, (1992) 20 ATC 226 that there can be no objection under the said Rule for retrospective regularisation.

66. Similar is the position in M. Janardhan v. State of A.P 1994 Supp (3) SCC 298, (1994) 28 ATC 383 There adverting to Rule 37(e) of the A.P Rules which also permitted regular promotion from an “anterior date” (like Rule 23 here), it was held that the said retrospective promotions were rightly upheld by the Tribunal.

Cases from other States support promotees' regularisation with retrospective effect

67. Apart from the cases arising from Andhra Pradesh the position appears to be the same as per the cases arising from other States, so far as the promotees' ad hoc service is concerned. In Baleshwar Dass v. State of U.P (1980) 4 SCC 226, (1981) 1 SCR 449 it was observed (at p. 464) that officiating promotees are to be given dates by the Service Commission for counting seniority. In B.S Yadav v. State of Haryana 1980 Supp SCC 524, (1981) 1 SCR 1024 it was said that the promotees have to be confirmed in their quota if found fit and qualified and when vacancies arose in their quotas. In A. Janardhana v. Union of India (1983) 3 SCC 601, (1983) 2 SCR 936 (at p. 961) it was observed that the seniority of the promotees was to count from the date of occurrence of vacancy in their quota. In G.P Doval v. Chief Secy., Govt. of U.P (1984) 4 SCC 329 it was held that subsequent approval by the Public Service Commission to the temporary appointments will relate back to the initial dates of appointment for the purpose of seniority on the basis of the rule of continuous officiation and the seniority could not be reckoned only from the date of approval or selection by the Commission. In Narender Chadha v. Union of India (1986) 2 SCC 157 it was held that the promotees were first to be regularised from the dates of occurrence of vacancies/eligibility. The initial appointment though not according to rules, the said service could not be ignored. In A.N Pathak v. Secy. to the Govt. 1987 Supp SCC 763, (1988) 6 ATC 626 it was held that the promotees had to be inserted at places reserved for them as per quota. In Delhi Water Supply & Sewage Disposal Committee v. R.K Kashyap 1989 Supp (1) SCC 194, (1989) 9 ATC 784 it was held that once regularisation was made by PSC/DPC, the said service could not be ignored.

As to when post of ad hoc/stopgap service of promotees cannot be regularised — if outside quota or not eligible or suitable

68. In some cases, a distinction is made between two parts of the ad hoc/stopgap service of promotees, one which can be regularised and the other which cannot be regularised. In Keshav Chandra Joshi v. Union of India 1992 Supp (1) SCC 272, (1993) 24 ATC 545 it was held that previous promotees would get regularisation from the date of occurrence of vacancy in the 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 1991 Supp (2) SCC 272, (1992) 19 ATC 315, AIR 1991 SC 518 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 1992 Supp (1) SCC 304, (1993) 24 ATC 559 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 1992 Supp (1) SCC 391, (1992) 19 ATC 493 it was held that the promotees' service would count from the date of availability of post within the quota and service before that date would be fortuitous. In Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575, (1994) 26 ATC 192 it was held that the service of promotees would count from the date of allotment to the select list but the period prior thereto would not count. In Keshav Deo v. State of U.P (1999) 1 SCC 280 Srinivasan, J. held, on a review of case-law that seniority of promotees would count from the dates fixed within the quota by DPC. (In this case, a good number of judgments which were relied upon before us by direct recruits were distinguished.)

69. Thus, there is overwhelming authority of this Court to hold that ad hoc, stopgap service could be regularised from an anterior date after consulting the Service Commission from the date of vacancy in the promotee quota, after considering fitness, eligibility, suitability and ACRs. Therefore, the ad hoc/stopgap service rendered by promotees beyond six months and without the consent of the Public Service Commission as per Regulation 4(d)(ii) cannot be treated as non est. It can be regularised later after consulting the Commission in respect of posts in the promotion quota and subject to eligibility and suitability based on ACRs, etc. Only the period rendered outside the quota or the period rendered within the quota when the promotee was not eligible or found fit has to be excluded.

70. Unfortunately, the High Court as well as the direct recruits have applied wrong rulings to the case of promotees and ignored the overwhelming authority, referred to above, in favour of promotees. We shall now refer to these aspects in detail.

Cases relied upon by direct recruits — not applicable

71. The direct recruits have strongly relied upon the decision in V. Sreenivasa Reddy v. Govt. of A.P 1995 Supp (1) SCC 572, (1995) 29 ATC 495 But this decision cannot be of any help to them. In that case Rule 10 and Rule 23 of the Andhra Pradesh State and Subordinate Service Rules were referred to. It was pointed that the promotees' temporary service under Rule 10 (i.e service rendered in a post to which the officer was not appointed according to rules), could not be counted on facts, because there was no order of retrospective regularisation. In fact, this Court accepted that if regularised under Rule 23 of the A.P Rules, the temporary appointees could have been regularised from an anterior date. (This Court then referred to certain rulings which said that direct recruits could not count ad hoc service rendered by them before their regular selection.) On facts, this Court held that the Government had relaxed the Rule regarding PSC consultation but had placed the promotees below the direct recruits and this need not be interfered with. This case far from supporting the direct recruits, supports the promotees.

72. Similarly, K. Siva Reddy v. State of A.P 1988 Supp SCC 225, (1988) 7 ATC 445, (1988) 3 SCR 18 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 rendered by the promotee is in a post within the direct recruit quota. The promotees were to be confined to their quota. This case is distinguishable.

73. Again, Ramendra Singh v. Jagdish Prasad 1984 Supp SCC 142 is distinguishable inasmuch 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

74. Next, the direct recruits and the High Court have relied upon several rulings which say that direct recruits cannot seek the benefit of ad hoc service rendered before their regular appointments.

75. These rulings cannot be applied to the case of the promotees. In fact the principle laid down in these cases is consistent with the principles in service jurisprudence so far as the ad hoc service rendered by direct recruits before the date of their regular selection is concerned. Their service counts only from the date of regular appointment according to rules and any ad hoc/stopgap service rendered before regular selection cannot count for seniority.

76. The direct recruits relied upon A.P.M Mayankutty v. Secy. (1977) 2 SCC 360 In that case, the petitioner was appointed in 1950 temporarily under Rule 10(a)(i) of the Rules [which is similar to the ad hoc appointment under Rule 14 and Rule 25 in the J&K Rules and Rule 10(a)(i) of the A.P Rules] but was directly recruited only in 1954. It was held that the pre-1954 service could not be counted. Likewise in State of T.N v. E. Paripoornam 1992 Supp (1) SCC 420, (1992) 19 ATC 653 the petitioner in the High Court was appointed temporarily under Rule 10(a)(i) but was recruited much later under the Rules through PSC. PSC gave him a rank. It was held that his seniority would be as per the rank and not from the date of temporary appointment. A.P.M Mayankutty case (1977) 2 SCC 360 was followed. P.D Aggarwal v. State of U.P (1987) 3 SCC 622, (1987) 4 ATC 272 was one where it was held (see paras 26-28) that the ad hoc service of the officer who was later directly recruited in consultation with PSC, could not count as it was not regularised service. Their seniority would count only from the date they become members of the services, even if they were qualified earlier on the date of temporary appointment (see p. 646). Masood Akhtar Khan v. State of M.P (1990) 4 SCC 24, (1990) 14 ATC 833 is also a case of a direct recruit and it was held that his previous service before regular selection by PSC could not count. Vijay Kumar Jain v. State of M.P 1992 Supp (2) SCC 95, (1992) 20 ATC 541 is similar. In State of Orissa v. Sukanti Mohapatra (1993) 2 SCC 486, (1993) 24 ATC 259 the exercise of the power of relaxation by the Government to count the ad hoc service of a direct recruit prior to PSC recruitment was held bad and the order, to that extent, was quashed. Dr Arundhati Ajit Pargaonkar v. State of Maharashtra 1994 Supp (3) SCC 380, (1994) 28 ATC 415 is also a case where ad hoc service of an employee before direct recruitment by PSC was held not liable to be counted. In E. Ramakrishnan v. State of Kerala (1996) 10 SCC 565 it was held that the pre-recruitment service of 13 years could not be counted. All these cases cited relate to ad hoc service of direct recruits before selection 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

77. We shall next refer to another set of cases relied upon by the direct recruits where, on facts, the promotees were not given the benefit of ad hoc/stopgap service. Here the service rendered by the promotees 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. C.K Antony v. B. Muraleedharan (1998) 6 SCC 630 arising from 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 in excess of the quota. Obviously, it could not count for seniority in view of Direct Recruit case (1990) 2 SCC 715, (1990) 13 ATC 348. Any regularisation 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 Agrawal v. State of M.P (1990) 2 SCC 553, (1990) 12 ATC 926 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. In B.N Nagarajan v. State of Karnataka (1979) 4 SCC 507, (1979) 3 SCR 937 the promotees' service from 1-11-1956 was regularised and it was held that the order of regularisation by the Government w.e.f 1-11-1956 by an executive order was not tenable because the probation rules came in from 1958 and in fact, the promotions were partly within the quota of direct recruits. The case in State of Bihar v. Akhouri Sachindra Nath 1991 Supp (1) SCC 334, (1991) 16 ATC 936, AIR 1991 SC 1244 is again distinguishable because there the promotees were not even officiating in the post on 22-2-1961 and were not even borne in the cadre. These cases are all distinguishable.

78. Unfortunately these rulings have been wrongly relied upon by the direct recruits or by the High Court, to hold that promotees are not entitled to the benefit of the ad hoc/stopgap service.

Summary

79. Summarising the position, we therefore hold that the ad hoc/stopgap service of the promotees cannot be treated as non est merely because PSC was not consulted in respect of continuance of the ad hoc/stopgap service beyond six months. Such service is capable of being regularised under Rule 23 of the J&K (CCA) Rules, 1956 and rectified with retrospective effect from the date of occurrence of a clear vacancy in the promotion quota, subject to eligibility, fitness and other relevant factors. There is no “rota” rule applicable. The “quota” rule has not broken down. Excess promotees occupying direct recruitment posts have to be pushed down and adjusted in later vacancies within their quota, after due regularisation. Such service outside the promotee quota cannot count for seniority. Service of the promotees which is regularised with retrospective effect from the date of vacancies within the quota counts for seniority. However, any part of such ad hoc/stopgap or even regular service rendered while occupying the direct recruitment quota cannot be counted. Seniority of the promotees or transferees is to be fixed as per quota and from the date of commencement of probation/regular appointment as stated above. Seniority of direct recruits is from the date of substantive appointment. Seniority has to be worked out between direct recruits and 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

80. We have next to refer to one other contention raised by the respondent 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, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota.

81. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service. This principle is well settled. In N.K Chauhan v. State of Gujarat (1977) 1 SCC 308 (SCC at p. 325, para 32) Krishna Iyer, J. stated:

Later direct recruits cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.

Again, in A. Janardhana v. Union of India (1983) 3 SCC 601, (1983) 2 SCR 936 it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N Pathak v. Secy. to the Govt. 1987 Supp SCC 763, (1988) 6 ATC 626 (SCC at p. 767) that slots cannot be kept reserved for direct recruits for retrospective appointments.

82. What we have stated in Points 1 to 4 in respect of ad hoc Assistant Engineers applies to ad hoc Assistant Executive Engineers, to the extent the principles laid down, are applicable. We say this in view of Point 2 that was framed by the High Court covering both the cadres. We hold on Points 1 to 4 as stated above.

Point 5

The relief

83. In view of our decision on Points 1 to 4, the appeals will be governed by our findings on Points 1 to 4. We further direct as follows: the Public Service Commission and the Government will complete the exercise of regular appointment of the promotees — Assistant Engineers and Assistant Executive Engineers within four months from today. Till such time the stay of promotions granted by this Court will operate. After passing orders under Rules 15 or 23, as the case may be, and in conformity with the quota and yearwise adjustment of quota, a fresh provisional seniority list will be prepared in the category of Assistant Engineers. Objections will be invited and the final seniority lists will be issued within two months of the last date fixed for filing objections. The stay of promotions granted by us will stand vacated once the provisional 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 the 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 the final seniority list of 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

84. Apart from the above specific directions, we think this is an occasion to issue certain general directions to the State of Jammu & Kashmir. As pointed out earlier, the State of Jammu and Kashmir has been flouting basic rules of recruitment by granting relaxation of the rules of direct recruitment as also the rules requiring consultation with PSC/DPC for promotions/recruitment by transfer. In order to ensure that this is not done in future, the following directions shall also issue:

(A) The State of Jammu and Kashmir shall appoint a High Level Committee within a month from today to go into the question as to whether in any department in government service, direct recruitment of existing vacancies has not been made and if there was unreasonable delay. The State will consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. But it will ensure that no promotees are put in the direct recruitment quota, temporarily or on stopgap or ad hoc basis unless simultaneously proceedings are initiated for direct recruitment through the Service Commission. The Committee will recommend in what manner the direct recruitment could keep pace with promotions as contemplated by rules.

(B) Similarly, the Committee will find out in which department the ad hoc/stopgap promotees are languishing without their cases being referred to the Service Commission/DPC for regularisation within their quota.

(C) The State of Jammu and Kashmir will ensure that no relaxation of the basic recruitment rules is made for direct recruitment through PSC, or for purposes of regular promotions/recruitment by transfer. The recommendations of the Committee referred to above may be considered by the Government and implemented in accordance with the rules and in accordance with law without unreasonable delay.

85. The appeals are disposed of as stated above. There will be no order as to costs.