TMI Blog1993 (4) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, by filing writ petitions in the Calcutta High Court claiming revision of their seniority, reckoned from the date of their initial ad hoc appointment. These writ petitions were dismissed by a Single Bench of the High Court but the writ appeals were allowed by a division bench, resulting in grant of the relief claimed by the ad hoc appointees. It is these judgments, involving the common question of the merit of the claim of the ad hoc appointees for seniority, reckoned from the date of their initial ad hoc appointment, in he facts and circumstances of the case, which are challenged in these appeals. Civil Appeal No. 3607 of 1988 is by the State of West Bengal while Civil Appeal No. 3610 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the P.W.D. Civil Appeal No. 3608 of 1988 is by the State of West Bengal while Civil Appeal No. 3611 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the Irrigation and Waterways Department. Civil Appeal No. 3609 of 1988 is a similar matter, also relating to the Irrigation and Water- ways D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod spent (continuously) in such employment. This relaxation of age limit will not be permitted to a candidate who had already appeared in the examination thrice. No candidate will be allowed to take more than three chances. Departmental candidates are' eligible to apply provided they fulfill the requisite qualifications. (b)Forty per cent by selection from amongst directly recruited temporary Assistant Engineers who have rendered two years satisfactory service, selection wing made by the Public Service Commission, West Bengal. (c)Twenty per cent by promotion of confirmed Overseer Estimators. Rule 10 Recruitment to temporary posts of Assistant Engineer shall be made as follows-.- (a) Eighty per cent of the vacancies are to be filled by direct recruitment on the results of a competitive examination referred to in rule 9(a) above. (b) Twenty percent by promotion of confirmed Overseer Estimators. Rule 11 Notwithstanding anything contained in these rules the Governor may in case of emergency fill up vacancies in the posts of Assistant Engineer both permanent and temporary by advertisement and interview, through the Public Service Commission, West Bengal. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neers in the promotion quota specified for them, in the Rules. It is, therefore, the claim of the writ petitioners for seniority from the date of their initial ad hoc appointment, as direct recruits, and not as promotees in the promotion quota, which has to be considered. The ad hoc appointment of all the writ petitioners was in identical terms and, therefore, it is sufficient to refer merely to the relevant part of one such notification dated 10th May, 1974, as illustrative of the nature of their ad hoc appointment. The relevant part of the notification is as under The Governor is pleased to appoint the following Sub-Assistant Engineers of the P.W.D. now posted in the Directorates/offices mentioned against each as tempy. Assistan t Engineers in the West Bengal Service of Engineers under the P.W. Department, on ad hoc basis, for a period of 6 (six) months with effect from the dates of joining or until further orders whichever is earlier. 4. The appointment is purely on ad hoc basis and he will have to revert to the post of S.A.E. if he is not selected for regular appointment as Assistant Engineer through the P.S.C. The initial ad hoc appointment was extended periodically, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment as made between May, 1974 and June, 1975 were earlier reported to the Commission in January, 1975. The Commission informed Government that the appointments had been ab initio irregular, illegal and unconstitutional and requested Government to make regular recruitment to the posts after advertisement (vide Secretary's D.O. No. 370-PSC dated the 8th March, 1975). The Commission also brought the irregularity to the notice of the Chief Secretary whose reply in this regard was as follows (vide Chief Secretary's letter No. 938/75-CS dated the 22nd August, 1975 issued by Public Works (Estt.) Department : '...The ad hoc appointments in question were made by the Public Works Department in the exigencies of public service pending recruitment of Assistant Engineers through the Public Service Commission, West Bengal and on the express condition that the concerned of- ficers would have 'lo revert if they failed to be selected by the Public Service Commission for appointment as Assistant Engineers. 3.It appears that of the 29 ad hoc Assistant Engineers (Civil) only 3 applied in response to the Commission's subsequent advertisement. None of them however appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority with effect from the date of their initial ad hoc appointment, of this nature. It may, here be mentioned, that in case of the ad hoc appointees in the Irrigation and Waterways Department, even a rule for seniority being given to them from 26.2.1980 was not made, as was done for the ad hoc appointees in the P.W.D., and yet they have also been given the same benefit. They make the same grievance, inspite of this. On behalf of the appellants, State of West Bengal and the direct recruits aggrieved by the judgment of the Division Bench of the High Court, it has been urged that the claim of the writ petitioners (respondents in these appeals) for seniority being given to the, retrospectively from the date of their initial ad hoc appointment, made contrary to the rules, in spite of their regularisation being made expressly from 26.2.1980, is wholly untenable and against the decisions of this Court, particularly the constitution bench decision in Direct Recruit Class II Engineering Officer's Association and Ors. v. State of Maharashtra and Ors., [1990] 2 SCR 900 = [1990] 2 SCC 715. On this basis, it was submitted that the Division Bench of the High Court committed an error in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. It is not necessary to deal at length with the decisions of this court in A. Janardhana and Narender Chadha in view of the later constitution bench judgment in Maharashtra Engineers' case, wherein all the relevant earlier decisions have been considered before summarising the conclusions (in para 44 of SCR = para 47 of SCC). We may, however, briefly refer to the decisions in A. Janardhana and Narender Chadha, since Shri Sanghi has strongly relied on them. It may be mentioned that both these decisions related to inter-se seniority of direct recruits and promotees, the two channels for appointment to the posts, where there was a quota prescribed for the two channels leading to rota for confirmation, and the seniority was based on the date of confirmation, according to rules. The dispute arose as a result of promotions being made in excess of the promotees quota, in the case of the surplus promotees. It was in that context, that the question of taking into account longer period of continuous officiation for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , while dealing with Narender Chadha, emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus : We, therefore, confirm the principle of counting towards seniority the period-of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.' The constitution bench having dealt with Narendra Chadha in this manner, to indicate the above principle, that decision can not be construed to apply to cases where the initial appointment was not according to rules. We shall now deal with conclusions (A) and (B) of the constitution bench in the Maharashtra Engineers' case, quoted above. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) can not cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not-being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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