TMI Blog1994 (10) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... were inter-viewed between February 18, 1982 and March 9, 1982. In the meanwhile, some supervening events occurred, namely, the candidates who had ap-plied for direct recruitment notified in the year 1978 had approached this Court and assailed the direction given by the Administrative Tribunal to the State Government to regularise the services of the temporary appoin-tees appointed during the years 1973 to 1978, otherwise then in accordance with the process of direct recruitment, This Court granted stay on February 8, 1982 which was vacated on August 2, 1982 and the judgment was rendered on October 21, 1982 in I.J. Dwakar v. Govt of A.P., [1982] 3 SCC 341. Therein this Court upheld the power of the Government exercised under proviso to clause (3) of Article 320 dispensing consultation with the PSC for the appointment by Direct recruitment and the relaxation given thereof. Consequently the government was directed to regularise the ser- vices of the temporary appointees under Rule 10(a)(i)(l) appointed during the period of the ban on recruitment and to appoint direct recruits of 1978 batch and until then further recruitment was stayed. The PSC had prepared the select list of 1981 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Department or from the date of their temporary appointment, whichever is later. The Chief Engineer, P.R. exercising the powers under condition (ii) above, regularised the temporary services of the appellants in the Panchayat Raj Engineering Service by his proceedings dated June 11,1984 with the five Conditions of which the relevant two conditions read as under: (b) The orders of regularisation of service now proposed to be issued shall be purely provisional and subject to such modification as may deem fit necessary in future and subject to relaxation of rules as may deem fit necessary to be issued by the government in future. (d) They shall not be entitled to for any seniority in the category of Asstt. Executive Engineers on the basis of their regular appoint-ment and given them seniority from the date of initial appointment between the dates afore-stated, namely, June 16, 1982 and August 19, 1980. The respondents, PSC candidates, who were appointed on May 14, 1984, appealed to the government against regularisation of the appellants contending that condition (iii) in G.O.Ms. No. 413 was misunderstood by the Chief Engineer; the government intended to give benefit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough temporary, they are members of the service since they were qualified graduate Engineers and appointed to the vacancies in the cadre borne on service and that, therefore, the ratio in Venkata Reddy' s case should be extended. We find no force in the contention inasmuch as its acceptance would be fraught with several incongruities. That in Venkata Reddy' s case the competing claims were not between temporary appointees and the PSC candidates. There, it was a matter of assigning seniority between temporary appointees and the promotees who secured B.E. qualification. The former Were appointed during the period of ban on recruitment. In that context, the State exercised its power under proviso to clause (3) of Article 320 and relaxed the requirement of con-sultation with PSC for direct recruitment, the entire length of service was given. Admittedly, though the appointments of the appellants were under Rule 10(a)(i)(l), they were not made on the basis of selection by PSC and, therefore, their appointments were made otherwise than in accordance with the Special Rules. Therefore, they cannot be the members of the service unless they are appointed to the service in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 3(1) and they become the members of the service from the date on which they started discharging the duties of the post borne on the cadre P.R.E. service. By operation of Rule 5 of the Special Rules, they were put on probation and they became members of the service and on declaration of probation, they became the approved probationers by operation of Rule 3(3) of Part I of the Rules awaiting appointment as full members. It is now well settled law that appointment/promotion must be in accordance with the Rules, direct recruitee takes his seniority from the date on which he starts discharging the duty of the post borne on the cadre While a temporary appointee appointed de hors the rules or on ad hoc basis or to a fortuitous vacancy gets seniority from the date of regular appoint- ment. It is settled law by the judgment of the Constitution Bench in Direct Recruits Class II Officers Association v. State of Maharashtra, [1992] 2 SCR 900, that appointment in accordance with Rules is a condition precedent to count seniority. Temporary or act hoc or fortuitous appointments etc. are not appointments in accordance with the Rules and the temporary service cannot be counted towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to such service, class or category. Rule 23(a) provides the procedure for commencement of the date of probation of persons first appointed temporarily as under : If a person having been appointed temporarily under Sub-Rule (a)(i)(l) or sub-rule (c) of Rule 10, a post borne on the cadre of any service, class or category or having been appointed to any service, class or category, otherwise (hen in accordance with the Rules governing and appointed thereto is subsequently appointed to any service, class or category in accordance with the Rules, he shall commence his probation from the date of subsequent appointment or such earlier date as appointing authority may deter-mine. The other clauses are not relevant for the purpose of this case, hence omitted. Rule 33 determines the seniority - (a) The seniority of a person in a service, class or category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appoint- ment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under rule 10 (a), (iv), 10(c), 16, 37 (d) or 42(d), his seniority shall be deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules. It was reiterated in K.C. Joshi's case and it is common experience that, it is a vicious circle that initially governments impose ban on recruit- ment and make massive ad hoc appointments de hors the rules giving a go-by to make recruitment in accordance with the Rules and then resort to regularisation of such appointments exercising the power under Article 320(3) proviso or Article 162 to make them the members of the service. This practice not only violates the mandates of the Articles 14 and 16 but also denies to all eligible candidates, their legitimate right to apply for and stand for selection and get selected. In State of Orissa v. S. Mahapatra, [1993] 2 SCC 486 and J K Public Service Commission v. Dr. Narendra Mohan, [1994] 2 SCC 630, it was held that appointments made in violation of recruitment rules violates Articles 14 and 16. Therefore, as stated earner, the Administrative Tribunal has rightly expressed unhappiness on the exercise of the power by the State Government by resorting to proviso to clause (3) of Article 320 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such a temporary employees may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary. In Paripoprmam's case, a bench of three Judges, of this Court held that the appellant, State Government, appointed Junior Professors tem-porarily, exercising the power under Rule 10(a)(i) (1) of Madras State Subordinate Services Rules. They subsequently appeared at the regular selection test conducted by PSC and were recommended as per the ap-proved list and order of merit of the appointment The government regularised the first set of Junior Professors with effect from the date of their original appointments and were promoted as Professors in the Law Colleges which was challenged in the writ petition. The High Court ac-cepted the plea and quashed the promotion and directed the government to make a proper order of promotion in the light of the view expressed in this judgment. The High Court held that once they have been regularised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is seen that under Rule 3(2) of Part I of the Rules, the approved candidates from the list of candidates communicated by PSC, the PSC candidates, by operation of Rule 3(1) of Part I, become persons appointed to the service from the date on which they started discharging the duties of the posts borne on the cadre. They were appointed to the substantive post by operation of Rule 4 of the Rules in the order of merit prepared by the PSC. On being put on probation under Rule 5 of the Special Rules and declaration of successful completion of probation, they became approved probationers under Rule 3(3) of Part I of the Rules. Under Rule 2 of the Special Rules, appointment to the post of Assistant Executive Engineer shall be made only by direct recruitment or by transfer from subordinate service. No third mode is permissible under the Special Rules. By opera-tion of Rule 2 of Part II of the Rules, if any provision in the Rules contained in Part II is repugnant to the provisions in the Special Rules applicable to any particular service contained in Part III, the Special Rules shall prevail over the Rules. Under Rule 23(a) of the Rules, the temporary appointee, if sub-sequently a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force. This was made explicit in the counter affidavit filed GA.D. Department in the Tribunal which read thus - It was intended to protect the interest of the candidates of 1981 batch with includes the applicants themselves. In the Tribunal, as stated earlier, the PSC candidates questioned the regularisation of the appellants by filing a separate O. A. in which the above counter came to be filed. The government, therefore, was right in their direction in G.O.Ms. No. 296 dated April 24, 1990 that the Chief Engineer RWS ADMN is directed to place all those A.E.Es. covered by G.O. Ms. No. 413 GA (Ser, A) dated August 29, 1983 below the last PSC candidates of 1981 batch allotted in 1984 in their respective zones and regularise their services accordingly, duly following the procedure of giving notice and obtaining Options against them etc. At this juncture, we may make it clear that though Shri Guru Raja Rao has contended that the regularisation by executive order is violative of Articles 14 and 16 and the statutory rules placing reliance on Nanjundappa's case, Nagarajan's case, Ramendra Singh's case and Dr. Nangendra Mohan Cases. Later in J K Public Service Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the same date of their initial appointment, since both possess the same qualifications and were appointed under rule 10(a)(i)(l), the denial of seniority to the temporary appointees from the date of their initial appointment, violates Article 14. We find no substance in the contention. It is seen that the PSC candidates were recruited on recommendation by PSC and pending verification of the antecedents of the candidates, they came to be appointed under Rule (a)(i) (l) but they were put on probation since they are selected on regular basis. Being direct recruits, their seniority, as stated earlier counts from the date on which they started discharging the duties of the post. The temporary appointees though have the insignia of the appointment under Rule 10(a)(i)(l), yet they are not members of the service until they are duly appointed and their services subsequently regularised, they get a date later to regular candidates, appointed in accordance with the Rules and were accordingly regularised. In other words, they are only temporary appoin-tees not in accordance with the Rules (Special Rules prescribed the procedure of recruitment by PSC and appointment by the State of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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