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PETITIONER: ASHOK GULATI & ORS.

       Vs.

RESPONDENT: B.S. JAIN & ORS.

DATE OF JUDGMENT17/12/1986

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) NATRAJAN, S. (J)

CITATION:  1987 AIR  424            1987 SCR  (1) 603  1986 SCC  Supl.  597     JT 1987 (1)    92  1986 SCALE  (2)1062  CITATOR INFO :  RF         1987 SC 415  (2)  RF         1987 SC1676  (26)  R          1988 SC 268  (25)  F          1988 SC 654  (2)  D          1989 SC 278  (20,21)  RF         1990 SC 857  (8)  RF         1991 SC 518  (1,3)  D          1992 SC 922  (16)

ACT:     Jurisdiction  of  High Court under Article  226  of  the Constitution-When the impugned order itself is for a  tempo- rary  period  of  six months and subject to  the  rights  of others, propriety of the issuance of Rule Nisi and making it absolute after years, at the instance of an aggrieved party.     Temporary Service on ad hoc basis and dehors the  rules, counting  of--Whether  such service rendered  by  the  Asst. Engineers  would count for the purposes of seniority in  the cadre of Asst. Engineers and also for the purposes of promo- tion  to  Class I Executive  Engineers--Haryana  Service  of Engineers  Class  II  Public  Works  Department  (Irrigation Branch) Rules, 1964 and Haryana Service of Engineers Class I Public  Works Department (Irrigation Branch) Rules, 1964  as amended in 1975 Rules 2(5), 6(b), 15 and 22, scope of     Words  and Phrases--Meaning of "Prescribed" in  Rule  15 whether there was relaxation of rule---If so, whether such a relaxation  is discriminatory and violative of  Articles  14 and 16 of the Constitution.

HEADNOTE:     Haryana  Service  of Engineers, Class II,  Public  Works Department (Irrigation Branch) Rules relating to recruitment etc.  of  Asst. Engineers and Haryana Service  of  Engineers Class I, Public Works Department (Irrigation Branch)  relat- ing to Executive Engineers came into force in 1970 and  1964 respectively.  Respondent No. 2, B.L. Gupta and  Respondents Nos.  B.S. Jain were appointed as temporary  engineers  (ad- hoc)  with effect from 19.5.1969 and 2.1.1971  respectively, the  former  sponsored by the Employment  Exchange  and  the latter with reference to an advertisement in the newspapers. Their  appointments were de hors the said Class II Rules  to

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meet  the exigencies of service. In the letters of  appoint- ment issued to them it was specified (i) that their appoint- ment  was  purely  on an ad-hoc basis for a  period  of  six months  from the date of their joining the post on  a  fixed salary  of Rs.400 plus  allowances and their  services  were terminable  without notice; (ii) that the appointment  would not entitle them to any seniority or other benefit under the service rules for the time being in force and would also not count  towards  increment in their salary;  (iii)  that  the posts of Tempor- 604 ary Engineers in Class II service would be advertised in the course  by  the Haryana Public Service Commission  and  they should apply for such posts through the Commission, and that if they were not selected by the Commission, their  services would  be liable to be terminated without notice;  and  (iv) that their inter-se seniority among the Temporary  Engineers would be in the order of merit in the list of candidates  as settled by the Commission. The services of respondents  Nos. 1 and 2 were however continued by the State Government  from time  to  time,  six months at a time  till  the  Secretary, Haryana  Public Service Commission by his letter dated  July 8,  1973 addressed to the Commissioner and Secretary to  the State Government of Haryana, Public Works Department  (Irri- gation  Branch) conveyed the approval of the  Commission  to the ad-hoc appointment of 251 Temporary Engineers beyond the period of six months till regular appointments were made  to the  posts  through the Commission. Accordingly  both  these respondents  continued to hold the posts of Temporary  Engi- neers  on  ad-hoc basis till the end of the year  1974  i.e. till  they  were recruited as Asst.  Engineers  through  the Public  Service  Commission  on April 21,  1975  on  regular basis.  In the letter of appointment issued by  the  Commis- sioner and Secretary to Government of Haryana (Irrigation  & Power  Department) dated January 13, 1975 it  was  specified again  that inter-se seniority of Asst. Engineers  would  be determined on the basis of the combined merit list  prepared by the Public Service Commission. In the combined merit list prepared  by the Commission, respondents Nos. 1 and  2  were placed  very much below the appellants and respondents  Nos. 5-24 being at serial Nos. 148 and 150 respectively.     The State Government of Haryana by order dated  December 20,  1978 promoted 62 Asst. Engineers including  the  appel- lants  and respondent Nos. 5-24 as Executive Engineers on  a purely  ad-hoc basis for a period of six months  subject  to certain  terms  and conditions, namely; (i)  the  promotions were  subject to the approval of the Public Service  Commis- sion  as  also to the claims of other  officers;  (ii)  such promotions  were not to give any right to the  officers  for being  appointed on a substantive basis as  Executive  Engi- neers; and (iii) such of the officers as had not passed  the departmental  professional  and  revenue  examinations  were required  to  pass such examination within a period  of  one year  or otherwise they were liable to be reverted to  their original post. These ad-hoc promotions of the appellants and respondents Nos. 5-24 were made in relaxation of the  provi- sions contained in rr. 6(b) and 15 of the Haryana Service of Engineers,  Class  I  Public  Works  Department  (irrigation Branch)  Rules, 1964. Presumably, the State  Government  ex- cluded from consideration the case of respondents Nos. 1 and 2 for  605 promotion because in the combined seniority list they ranked below the appellants and respondents Nos. 5-24 being  placed at serial Nos. I48 and 150 respectively.

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   The  said  ad-hoc promotions to Class I posts  were  as- sailed  by respondents I and 2 by a petition  under  Article 226. A learned Single Judge by his judgment dated  8.10.1980 quashed  the impugned order of the State  Government  making the said ad hoc promotions and directed the State Government to reach a decision afresh as regards the ad hoc  promotions with advertence to the observations made by him.  Thereupon, the  appellants preferred an appeal under clause 10  of  the Letters Patent but the appeal was dismissed in limine by the Division  Bench,  by its order dated 6.11.1980.  The  appel- lants’ contention that the appointment of respondents Nos. I and 2 as Temporary Engineers on an ad-hoc basis was contrary to para 8.312 of the Manual of Administration and  therefore the  period during which they worked as Temporary  Engineers (ad-hoc) could not be taken into consideration, was repelled by  the  Bench on the ground that no such  point  was  taken before the learned Single Judge. Hence the appeal by special leave. Allowing the appeal, the Court     HELD:  1.  The High Court ought not  to  have  exercised their  powers  under  Article 226 of  the  Constitution  and entertained the writ petition of respondents I and 2 partic- ularly  when  the  impugned order of  the  State  Government making  promotion  of the 62 Asst. Engineers  including  the appellants  and respondents 5-24 as Executive Engineers  was purely  on  an ad-hoc basis for a period of six  months  and expressly  made  subject to the rights  of  other  officers. Instead of interfering with the impugned order of the  State Government the proper course for the High Court should  have been to issue a direction to the State Government to consid- er the cases of the eligible officers including  respondents Nos.  I and 2 for ad-hoc promotion as Executive Engineer  if their  turn  was due for such promotion according  to  their placement  in the seniority list and it should have  in  the meanwhile  allowed the appellants and respondents Nos.  5-24 to  continue in their posts as Executive Engineers  (ad-hoc) subject to the condition that while considering their  cases for  promotion  the  State Government would  not  take  that circumstance  into consideration that they had continued  to function as Executive Engineers on an ad-hoc basis. [613G-H; 614A-C]     1.2  Rule 15 of the Punjab/Haryana Service of  Engineers Class  I  P.W.D. (Irrigation Branch) Rules,  1970  in  terms provides that the  606 departmental  professional  and  revenue  examinations   for purposes  of  promotion to the Class I service  have  to  be passed  within  such period as may be prescribed.  The  word ’prescribed’  in Rule 15 clearly empowers the State  Govern- ment  to  provide for the period during which  the  promoted officers had to pass the departmental test. In terms of that rule,  the State Government by the impugned  order  directed that  the officers who had not passed the departmental  pro- fessional  and  revenue examinations were required  to  pass such examinations within a period of one year otherwise they were  liable to be reverted to their original  post.  There- fore, no question of relaxation under Rule 22 arose.  [613C- E]     2.1  The  period  of service rendered  by  persons  like respondents Nos. 1 and 2 who were appointed on ad hoc  basis purely on a stop gap arrangement for six months at a time de hors  the rules, cannot be considered for purposes of  their seniority  in Class II service or in reckoning their  eligi- bility  of 8 years’ service in that class of  service  under Rule 6(b) of the Class I Rules. [625F-G]

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   2.2.  As  a matter of construction the words  "Class  II service"  in Rule 8(2) introduced by amendment in 1975  must be  construed  to have the same meaning  as  the  expression "Class  II  service" as defined in Rule 2(5). Prior  to  the amendment  in  1975, the expression, "Class II  Service"  as defined  in Rule 2(5) meant the members of Class II  service including Temporary Engineers. The key to the interpretation of the definition clause in Rule 2(5) is the words "for  the purpose of promotion." The effect of the enlarged definition of  Class II service in Rule 2(5) is that these  words  when found  in  the Act must, for the purpose  of  promotion,  be understood  in that context in a certain sense i.e.  to  in- clude not only members of CIass II Service including  Tempo- rary  Engineers  but also Offg.  Sub-Division  Officers  and Offg. Assistant Design Engineers who, but for the  interpre- tation  clause, would not be so included. That would  be  in consonance  with  the purpose and object of  the  amendment. [619G-H; 620B-C]     2.3  The meaning of the word "as" in the collocation  of the words "any service rendered as a Temporary Engineer"  in Explanation to Rule 6(b) of the Class I Rules must obviously mean "in the capacity of". [621A-B]     Dr.  Asim Kumar Bose v. Union of India & Ors., [1983]  1 SCC 345, applied. 2.4 It is true that though respondents Nos. 1 and 2 were 607 appointed  as Temporary Engineers on an ad-hoc  basis,  they should  be  deprived of the period of their  officiation  as such till they were absorbed to the post of Assistant  Engi- neer  on a regular basis through the Public Service  Commis- sion  on April 21, 1975. That is a legal  consequence  which cannot be avoided on well-settled principles. [623D-E]     2.5  According to the accepted cannos of service  juris- prudence,  seniority of a person appointed must be  reckoned from  the date he becomes a member of the service. The  date from  which seniority is to be reckoned may be laid down  by rules  or instructions (a) on the basis of the date  of  ap- pointment (b) on the basis of confirmation (c) on the  basis of  regularisation of service (d) on the basis of length  of service;  or (e) on any other reasonable basis. It is  well- settled that an ad-hoc or fortuitous appointment on a tempo- rary or stop-gap basis cannot be taken into account for  the purpose of seniority even if the appointee was qualified  to hold  the post on a regular basis, as such temporary  tenure hardly counts for seniority in any system of service  juris- prudence. [624B-D]     2.6  It must now be well taken as well established  that after  the  Supreme  Court decisions from  N.K.  Chauhan  to Baleswar Das in the absence of any other valid principle  of seniority,  the inter-se seniority between  direct  recruits and promotees should as far as possible be determined by the length of continuous service whether temporary or  permanent in  a particular grade or post (this should exclude  periods for  which  an appointment is held in a purely  stop-gap  or fortuitous arrangement). These decisions particularly  that- in Baleshwar Das’s case clearly lay down that ordinarily and in  the absence of any specific rule of seniority  governing the  cadre or service, the length of continuous  officiation should  be counted in reckoning seniority as between  direct recruits  and promotees. These authorities nowhere lay  down that the same principle i.e. the length of continuous  offi- ciation must be the sole guiding factor and the only  crite- rion  in  determining  seniority  of  such  adhoc  employees vis-a-vis  direct  recruits. On the contrary,  they  clearly proceed on the principle that persons appointed on an ad-hoc

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basis or for fortuitous reasons or by stop-gap  arrangement, constitute a class which is separate and distinct from those who are appointed to posts in the service in strict conform- ity with the rules of recruitment. [629E-G; 627.E-F]     N.K. Chauhan & Ors. v. State of Gujarat & Ors., [1977] 1 SCR  1037; S.B. Patwardhan & Ors. v. State of Maharashtra  & Ors.,  [1977] SCR 775; and Baleshwar Das & Ors. v. State  of Uttar Pradesh & Ors., [1981] 1 SCR 449, discussed. 608     A.P.M.  Mayakutty  etc.  v.  Secretary,  Public  Service Department, [1977] 2 SCR 937; State of Gujarat v.C.G.  Desai JUDGMENT: Ors.,  [1983]  3  SCC 601; O.P. Singla v.  Union  of  India, [1984] 4 SCC 450; G.S. Lamba v. Union of India, [1985] 2 SCC 604;  P.S.  Mahal v. Union of India, [1984] 4 SCC  545;  and Pran Krishna Goswami & Ors. v. State of West Bengal &  Ors., [1985] Suppl. SCC 221, referred to. Narendra  Chadha & Ors. v. Union of India & Ors.,  [1986]  2 SCC  157; G.P. Doval & Ors. v. The Chief Secretary,  Govern- ment  of  Uttar Pradesh & Ors., [1985] 1 SCR  70;  and  C.P. Damodaran Nayar v. State of Kerala & Ors., [1974] 2 SCR 867, distinguished.

&     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  149  of 1981.     From  the  Judgment and Order dated 6.11.  1980  of  the Punjab and Haryana High Court in C.P.A. No. 811 of 1980. M.K. Ramamurthy, U.R. Lalit, Shanti Bhushan, M.R. Sharma, P.P. Rao, S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam, P.P.  Sharma, K.S. Tiwari, C.V. Subba Rao, I.S.  Goel,  P.H. Parekh, Sohail Dutt, Uma Datta and V.P. Goel for the appear- ing parties. The Judgment of the Court was delivered by     SEN,  J.  In  this appeal by special  leave,  the  short question  involved is whether respondents Nos. 1 and 2  were entitled  to the benefits of the period of service  rendered by  them  as Temporary Engineers on an ad-hoc basis  in  the Irrigation  Branch of the Public Works Department, State  of Haryana  i.e. prior to their appointment as Assistant  Engi- neers on regular basis on April 21, 1975 along with the  six appellants and respondents Nos. 5-24 for purposes of reckon- ing their eligibility for promotion to the post of Executive Engineer  under r.6(b) read with the Explanation thereto  of the  Haryana  Service of Engineers, Class  I,  Public  Works Department  (Irrigation Branch) Rules, 1964, as  amended  in 1975,  (’Class I Rules’ for short) as also for  purposes  of their seniority in the cadre of Assistant Engineers.     Facts  bearing  on the question are as follows.  In  re- sponse to an advertisement published in the Daily Tribune of February  6, 1970 inviting applications for  appointment  as Temporary  Engineers  on an ad-hoc basis, respondent  No.  1 B.S. Jain was appointed as a Tem- 609 porary Engineer (ad-hoc) w.e.f. January 2, 1971 for a period of  six months i.e. after the coming into force of the  Har- yana Service of Engineers, Class II, Public Works Department (Irrigation  Branch)  Rules,  1964  (’Class  II  Rules’  for short). Prior to this, respondents No. 2 S.L. Gupta was also appointed as a Temporary Engineer on an ad-hoc basis  w.e.f. May  19,  1969 by calling his name  through  the  Employment Exchange  i.e.  subsequent to the coming into force  of  the Class II Rules. Their appointments were de hors the rules to

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meet  the exigencies of service. In the letters of  appoint- ment issued to them, it was specified that their appointment was  purely  on an ad-hoc basis for a period of  six  months from the date of their joining the post on a fixed salary of Rs.400  plus allowances and their services  were  terminable without  notice.  They were specifically informed  that  the appointment would not entitle them to any seniority or other benefit under the service rules for the time being in  force and would also not count towards increment in their  salary. They  were also intimated that the posts of Temporary  Engi- neers in Class II service would be advertised in due  course by  the  Haryana Public Service Commission and  they  should apply  for  such posts through the Commission, and  that  if they  were  not selected by the Commission,  their  services would  be liable to be terminated without notice. Also  that their inter-se seniority among the Temporary Engineers would be  in the order of merit in the list of candidates as  set- tled  by the Commission. The services of respondents Nos.  1 and  2 were however continued by the State  Government  from time  to  time, six months at a time,  till  the  Secretary, Haryana  Public Service Commission by his letter dated  July 8,  1973 addressed to the Commissioner and Secretary to  the State Government of Haryana, Public Works Department  (Irri- gation  Branch) conveyed the approval of the  Commission  to the ad-hoc appointment of 251 Temporary Engineers beyond the period of six months till regular appointments were made  to the  posts through the Commission. Accordingly,  both  these respondents  continued to hold the posts of Temporary  Engi- neers  on  ad-hoc basis till the end of the year  1974  i.e. till they were recruited as Assistant Engineers through  the Public  Service  Commission  on April 21,  1975  on  regular basis.     It  appears that in response to an advertisement  issued by  the Public Service Commission in October 1973,  respond- ents Nos. 1 & 2 appeared at a competitive examination  along with  the  appellants  and respondents Nos.  5-24  and  were selected by the Public Service Commission for appointment as Assistant Engineers under the Haryana Service of  Engineers, Class II, Public Works Department (Irrigation Branch) Rules, 1970. In the letter of appointment issued by 610 the  Commissioner  and Secretary to  Government  of  Haryana (Irrigation  & Power Department) dated January 13,  1975  it was specified that inter-se seniority of Assistant Engineers would be determined on the basis of the combined merit  list prepared  by the Public Service Commission: In the  combined merit list prepared by the Commission, respondents Nos. 1  & 2 were placed very much below the appellants and respondents Nos. 5-24 being at serial Nos. 148 and 150 respectively.  It may be stated that the merit list prepared by the Commission has never been questioned before us.     A  few  more facts. The State Government of  Haryana  by order  dated December 20, 1978 promoted 62  Assistant  Engi- neers including the appellants and respondents Nos. 5-24  as Executive Engineers on a purely ad-hoc basis for a period of six months subject to certain terms and conditions.  namely: (i)  The  promotions  were subject to the  approval  of  the Public  Service  Commission as also to the claims  of  other officers. (ii) Such promotions were not to give any right to the  officers for being appointed on a substantive basis  as Executive  Engineers. And (iii) Such of the officers as  had not passed the departmental professional and revenue  exami- nations  were  required to pass such examinations  within  a period  of  one  year or otherwise they were  liable  to  be reverted to their original post. These ad-hoc promotions  of

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the appellants and respondents Nos. 5-24 were made in relax- ation  of the provisions contained in rr.6(b) and 15 of  the Haryana Service of Engineers, Class I, Public Works  Depart- ment (Irrigation Branch) Rules,  1964. Presumably, the State Government excluded from consideration the case of  respond- ents  Nos. 1 & 2 for promotion because in the combined  sen- iority list they ranked below the appellants and respondents Nos.  5-24 being placed at serial Nos. 148 and  150  respec- tively.     The ad-hoc promotion of appellants and respondents  Nos. 5-24  was assailed by respondents Nos. 1 & 2 by  a  petition under Art. 226 of the Constitution filed before the Punjab & Haryana High Court mainly on the ground that when  qualified persons like them i.e. respondents Nos. 1 & 2 were  eligible for being considered for promotion to the post of  Executive Engineer under r. 6(b), there was no justification  whatever for  the State Government to grant general relaxation  under the proviso thereof to make the ineligible persons  eligible for  promotion  in denial of their claims.  It  was  further pleaded that the State Government having relaxed the  condi- tion  of eligibility under the proviso to r.6(b)  read  with the  Explanation thereof as regards eight years  service  in the case of promotion of the appellants and respon- 611 dents  Nos. 5-24 as Executive Engineer on an  ad-hoc  basis, failed  to appreciate that respondents Nos. 1 & 2  who  were recruited  along with them and had also put in more or  less 31/2 years service as Assistant Engineers became entitled to the  benefit of such relaxation and the action of the  State Government in not considering their cases for such promotion was  wholly arbitrary and was tantamount to denial of  equal opportunity  in  the matter of employment  in  violation  of Arts. 14 and 16(1) of the Constitution. It was also  pleaded that  the power conferred on the State Government  to  grant relaxation under r.22 was not a general power but a power to mitigate hardship in a particular case and thus the  general relaxation  granted by the State Government to some  of  the respondents  who had not passed their  departmental  profes- sional and revenue examinations was invalid. It was asserted that the State Government and the Engineer-in-Chief, Irriga- tion  Department,  Haryana had wrongly  treated  respondents Nos.  1 & 2 as ineligible for promotion on the  ground  that the  period  from January 1971 and May 1969 upto  April  21, 1975  i.e.  the period during which respondents Nos. 1  &  2 remained  employed as Temporary Engineers on  ad-hoc  basis, could  not  be treated as period in that  class  of  service within the meaning of r.6(b) i.e. in Class II service.     The specific stand taken by the State Government in  the return filed before the High Court was that respondents Nos. 1  & 2 were recruited to the post of Assistant  Engineer  on April 21, 1975 and thus had only about 31/2 years service on December  20, 1978 to their credit when appellants  and  re- spondents Nos. 5-24 were promoted as Executive Engineers  on an  ad-hoc  basis. Prior to their appointment  as  Assistant Engineers,  respondents  Nos. 1 & 2 had  been  appointed  as Temporary  Engineers on ad-hoc basis de hors the  rules  and under the terms of appointment they were not entitled to any seniority  or  other benefit under the service  rules  as  a result  of  such appointment. Further, it was  pleaded  that respondents Nos. 1 & 2 in the seniority list prepared by the Public  Service Commission were ranked junior to the  appel- lants and respondents Nos. 5-24 and therefore they were  not entitled to be considered for promotion.     A learned Single Judge (R.N. Mittal, J.) by his judgment dated  October  8, 1980 quashed the impugned  order  of  the

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State Government making ad-hoc promotions of the  appellants and respondents Nos. 5-24 and directed the State  Government to reach a decision afresh as regards the ad-hoc  promotions with  advertence  to the observations made by  him.  In  his judgment the learned Single Judge repelled the contention of respondents Nos. 5-24 for being considered for promo- 612 tion  since none of them had completed eight years’  service as  Assistant Engineer on the ground that the State  Govern- ment  was empowered in terms of proviso to r. 6(b) to  relax generally, in public interest, the condition regarding eight years’ experience for reasons to be recorded in writing.  He found  on  perusal  of the records placed  before  him  that reasons for the relaxation in public interest of the  condi- tion  of eight years’ service imposed by r.6(b) had in  fact been  recorded  for  reducing the period to  31/2  years  in consultation  with  the Finance Department.  He  accordingly held  that  the ad-hoc promotion of the appellants  and  re- spondents  Nos.  5-24 was not invalid on that  account.  The learned  Single  Judge however accepted  the  contention  of respondents Nos. 1 & 2 that they were entitled to the  bene- fit  of  the period of continuous officiation  as  Temporary Engineers on an ad-hoc basis from January 1971 and May  1969 to  April 21, 1975 in reckoning eight years’  experience  in that  class  of service within the meaning  of  r.6(b)  i.e. Class  II  service by reason of Explanation to r.  6(b)  and were therefore eligible for promotion to the post of  Execu- tive Engineer under r. 8(2) in view of the definition of the expression  ’Temporary  Engineer’ contained  in  r.2(5),  as amended  in 1975. He also upheld their contention  that  the power conferred on the State Government under r.22 was not a general power of relaxation but a power exercisable only  to mitigate  any  undue hardship in the case  of  a  particular individual  and  therefore the impugned order of  the  State Government permitting relaxation in the case of  respondents Nos.  9, 10 and 11 Gyan Singh, P.D. Kadian and C.P. Goel  as regards  the  passing of the departmental  professional  and revenue examinations as required by r. 15 was invalid.  Upon that  view, the learned Single Judge allowed the Writ  Peti- tion and quashed the impugned order of the State  Government for  the ad-hoc promotion of the appellants and  respondents Nos. 5-24 as Executive Engineers. Incidentally, the judgment of  the learned Single Judge leaves untouched  the  impugned order  insofar as it relates to the ad-hoc promotion  of  37 Assistant Engineers to the post of Executive Engineer.     Thereupon, the appellants preferred an appeal under  cl. 10  of  the letters patent but the appeal was  dismissed  in limine by a Division Bench (P.C. Jain & C.S. Tiwana, JJ)  by its order dated November 6, 1980. The learned Judges  stated that they were in full agreement with the view expressed  by the learned Single Judge. The appellants apparently advanced a contention that the appointment of respondents Nos. 1 &  2 as  Temporary Engineers on an ad-hoc basis was  contrary  to Para 8.312 of the Manual of Administration and therefore the period during which they worked as Temporary Engineers  (ad- hoc) could not 613 be taken into consideration. The learned Judges repelled the contention on the ground that no such point was taken before the learned Single Judge.     We must at the very outset observe that the judgment  of the learned Single Judge quashing the impugned order of  the State  Government  for the promotion of the  appellants  and respondents  Nos. 5-24 as Executive Engineers on  an  ad-hoc basis on the ground that the State Government could not have

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relaxed  the condition of passing the  departmental  profes- sional  and revenue examinations prescribed under r.  15  of the Class I Rules by taking recourse to r. 22 which did  not confer  a  general power of relaxation can  hardly  be  sus- tained.  We  are afraid, the learned Single Judge  was  com- pletely misled in taking the view that he did. This was  not a  case of relaxation at all but a question  of  prescribing the  period during which such examination had to be  cleared as  required under r. 15. R. 15 in terms provides  that  the departmental  professional  and  revenue  examinations   for purposes  of  promotion to the Class I service  have  to  be passed  within  such period as may be prescribed.  The  word ’prescribed’ in r. 15 clearly empowers the State  Government to provide for the period during which the promoted officers had  to pass the departmental test. In terms of  that  rule, the State Government by the impugned order directed that the officers  who had not passed the  departmental  professional and revenue examinations were required to pass such examina- tions within a period of one year otherwise they were liable to  be reverted to their original post. It must be  said  in all fairness that learned counsel for respondents Nos. 1 & 2 did not support this part of the Judgment.     After  having heard learned counselor the parties  quite at  some length in a heating lasting over several  days,  we feel  that  irrespective c f the merits of  the  contentions advanced,  no useful purpose would be served in  maintaining the  judgment  of the High Court insofar as it  quashes  the impugned  order of the State Government dated  December  20, 1978  for  the promotion of the appellants  and  respondents Nos. 5-24 as Executive Engineers on an ad-hoc basis after  a lapse  of  such a long time as it would  create  unnecessary administrative  complications.  During the  heating  we  ex- pressed  our  doubts about the wisdom of the High  Court  in entertaining  the  Writ Petition of respondents Nos. 1  &  2 particularly when the impugned order of the State Government making promotion of the 62 Assistant Engineers including the appellants and respondents Nos. 5-24 as Executive  Engineers was purely on an ad-hoc basis for a period of six months and expressly  made  subject to the fights  of  other  officers. Instead of interfering with the impugned 614 order of the State Government the proper course for the High Court  should  have been to issue a direction to  the  State Government  to consider the cases of the  eligible  officers including  respondents  Nos. 1 & 2 for ad-hoc  promotion  as Executive Engineers if their turn was due for such promotion according  to their placement in the seniority list  and  it should  have  in the meanwhile allowed  the  appellants  and respondents  Nos.-5-24 to continue in their posts as  Execu- tive Engineers (ad-hoc) subject to the condition that  while considering  their cases for promotion the State  Government would  not  take that circumstance into  consideration  that they had continued to function as Executive Engineers on  an ad-hoc basis.      That course commends to us for another reason as  well. Although  the  High Court by its judgment  and  order  dated October  8,  1980 quashed the impugned order  of  the  State Government dated December 20, 1978 making the ad-hoc  promo- tions  and  issued a direction that  the  Government  should reach a decision afresh in the matter, the fact remains that neither  the judgment of the High Court nor  the  directions made  by it have taken effect. On the contrary,  this  Court while granting special leave on January 14, 1981 stayed  the operation  of  the judgment of the High Court. As  a  conse- quence, the result has been that the appellants and respond-

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ents  Nos.  5-24  have continued to  function  as  Executive Engineers on an ad-hoc basis for the last about eight  years under the interim order of stay. Incidentally, the  judgment of  the  High  Court leaves untouched the  promotion  of  37 Assistant  Engineers  and  Executive  Engineers.  The  State Government will also have to give effect to the decision  of this  Court in A.S. Parmar’s v. State of Haryana,  [1984]  2 SCR 476 laying down that a degree in Engineering was ’not an essential qualification for promotion of Assistant Engineers in the Irrigation Branch to the cadre of Executive Engineers in  Class  I service under r.6(b) of the Class I  Rules  and therefore  the Assistant Engineers who are  diploma  holders are  equally eligible for such promotion. The State  Govern- ment in the Public Works Department (Irrigation Branch) by a notification  dated  June 22, 1984 purported  to  effect  an amendment  to  r.6(b) of the Class I Rules with  a  view  to nullify the decision of this Court in A.S. Parmar’s case. By a  separate  judgment in the connected Writ  Petitions  Nos. 630-32/84 delivered today, we have struck down the  impugned notification as offending against Arts. 14 and 16(1) of  the Constitution and also as ultra vires the State Government by reason  of the proviso to s.82(6) of the Punjab  Reorganisa- tion  Act,  1966. It appears that the State  Government  has been treating a degree in Engineering referred to in  Cl.(a) r.6 as an essential qualification for promotion to the  post of 615 Executive  Engineer in Class I service in the case of  offi- cers in Class II service presumably on the view expressed by the  Punjab & Haryana High Court in O.P. Bhatia v. State  of Haryana,  ILR [1980] P & H 470. The controversy was  settled by  the decision of this Court in A.S. Parmar’s case and  it overruled  the decision of the High Court in  O.P.  Bhatia’s case and held on a consideration of the relevant rules  that the qualification of degree in Engineering was not necessary in the case of officers in Class II service for promotion to the  post  of Executive Engineer. That apart, we  must  deal with the appeal on merits as the judgment of the High  Court leaves much to be desired.     Issues  raised  in this appeal by special leave  are  of far-reaching significance to the civil services. It involves a claim by persons who had been in employment in the Govern- ment  service  on a purely ad-hoc basis de hors  the  rules, that they were entitled upon their absorption to the post on a  regular  basis,  to the benefit of the  period  of  their continuous  officiation  as temporary  employees  on  ad-hoc basis for determining their eligibility for promotion to the higher  grade or post. The questions presented  are  whether the principles laid down in N.K. Chauhan & Ors. v. State  of Gujarat & Ors., [1977] 1 SCR 1037 and S.B. Patwardhan & Ors. v. State of Maharashtra & Ors., [1977] 3 SCR 775  reiterated in  Baleshwar Das & Ors. v. State of Uttar Pradesh  &  Ors., [1981] 1 SCR 449 and subsequently followed in several  deci- sions,  that ordinarily in the absence of any specific  rule of  seniority governing the cadre or service, the length  of continuous  officiation should be counted in reckoning  sen- iority as between direct recruits and promotees, should also be extended in determining seniority of such adhoc employees vis-a-vis  direct recruits, and whether the failure  on  the part of the Government to count the entire period of offici- ation as such ad-hoc employees would be per se arbitrary and irrational  and thus violative of Arts. 14 and 16(1) of  the Constitution  inasmuch as the temporary service in the  post in question was not for a short period intended to meet some emergent  or unforeseen circumstances, but to meet the  exi-

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gencies  of  the  service. It is asserted  that  the  recent pronouncement of this Court in the case of Narendra Chadha & Ors.  v.  Union of India & Ors., [1986] 2 SCC  157  supports this view. The argument at first blush appears to be plausi- ble but on deeper consideration is not worthy of acceptance. We proceed to give reasons therefor.     We  are  not aware of any principle or rule  which  lays down  that the length of continuous  officiation/service  is the  only relevant criterion in determining seniority  in  a particular cadre or grade, irrespective of any specific rule of seniority to the contrary. It is necessary to 616 emphasise  that the principles laid down in the two  leading cases  of  N.K. Chauhan and S.B. Patwardhan,  reiterated  in Baleshwar  Das’s case and subsequently followed  in  several decisions  are  not an authority for any  such  proposition. These  decisions  particularly that in Baleswar  Das’s  case clearly  lay down that ordinarily and in the absence of  any specific  rule of seniority governing the cadre or  service, the  length of continuous officiation should be  counted  in reckoning  seniority as between direct recruits  and  promo- tees.  These  authorities  nowhere lay down  that  the  same principle i.e. the length of continuous officiation must  be the sole guiding factor and the only criterion in  determin- ing  seniority  of such ad-hoc  employees  vis-a-vis  direct recruits.     The  contention on behalf of the appellants  firstly  is that the High Court was dearly in error in holding that  the entire period of service of respondents Nos. 1 & 2 as Tempo- rary Engineers on ad-hoc basis i.e. the period from  January 1971  and May 1969 to April 21, 1975 had to be  counted  not only  for  purposes of their seniority under r.8(2)  of  the Class I Rules but also for the purpose of their  eligibility for  promotion  to  the post of  Executive  Engineers  under r.6(b). It is said that the High Court failed to  appreciate that respondents Nos. 1 & 2 were not recruited as  Temporary Engineers under the instructions contained in the Manual  of Administration issued under the Punjab Service of Engineers, Class  II,  Public  Works  Department,  (Irrigation  Branch) Rules, 1941 or under the Punjab Service of Engineers,  Class II, Public Works Department (Irrigation Branch) Rules, 1970, but  their appointment as Temporary Engineers was purely  on an ad-hoc basis de hors the rules and therefore they did not fail  within the ambit of the definition of  the  expression ’Class  II  Service’ as defined in r. 2(5),  as  amended  in 1975.  Secondly, the High Court failed to take into  account the fact that respondents Nos. 1 & 2 became members of Class II  service only on April 21, 1975 when they were  recruited as Assistant Engineers on a regular basis through the Public Service  Commission. Till then they did not answer  the  de- scription  of  ’Temporary Engineers’ as defined  in  r.2(5). They  did not even figure in the notification dated May  18, 1982  issued by the State Government under r.3  constituting the service of Engineers as Class II service w.e.f. December 25, 1970. It must therefore logically follow that the  serv- ice rendered by them as Temporary Engineers on ad-hoc  basis prior  to their recruitment as Assistant Engineers  in  1975 could not be treated to be service in that class within  the meaning  of  r.6(b) of the Class I Rules.  Likewise,  r.8(2) which  speaks of any service rendered as Temporary  Engineer must be construed accordingly as meaning service rendered by a Temporary 617 Engineer  recruited in the manner provided by  the  instruc- tions contained in Manual of Administration issued under the

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1941 Rules or recruited as such under the 1970 Rules.  Last- ly,  the decision in BaleShwar Das’s case does not lay  down any proposition that persons employed on a purely ad-hoc  or fortuitous basis like respondents Nos. 1 & 2 are entitled as a  matter  of law to the benefit of their period  of  ad-hoc service and the two later decisions in G.P. Doval & Ors., v. The  Chief  Secretary, Government of Uttar Pradesh  &  Ors., [1985]  1 SCR 70 and Narendra Chadha are of  little  assist- ance. These submissions, in our opinion, must prevail.     In  reply,  the main contention of learned  counsel  for respondents  Nos. 1 & 2 is that respondents Nos. 1 & 2  upon their  absorption  to the post of Assistant  Engineer  on  a regular basis on April 21, 1975 were entitled to the benefit of  the entire period of officiation as Temporary  Engineers on an ad-hoc basis i.e. the period from January 1971 and May 1969 to April 21, 1975 and the failure of the Government  to count  such period of their ad-hoc service was per se  arbi- trary,  irrational and thus violative of Arts. 14 and  16(1) of the Constitution inasmuch as the service rendered by them as  Temporary Engineers (ad-hoc) was not for a short  period intended to meet some emergent or unforeseen  circumstances, but  to meet the exigencies of the service and there  is  no reason why the principles laid down in Baleshwar Das’s  case should also not be extended in determining the seniority  of such  ad-hoc employees vis-a-vis direct recruits.  Secondly, he contends that exercise of the power of relaxation of  the condition of eight years’ service for purposes of eligibili- ty  conferred on the State Government under the  proviso  to r.6(b) is conditioned by the obligation to record reasons in writing  which requirement was mandatory. There was  failure on the part of the Government to record reasons therefor  or to  indicate any basis to show that such relaxation  was  in public  interest. Further, the words ’Class II  Service’  in r.8(2)  must bear the same meaning as the expression  ’Class II Service’ as defined in r.2(5). The artificial  definition of ’Class II Service’ introduced by amendment of r. 2(5)  in 1975  was obviously to bring persons who were not  Assistant Engineers  i.e. members of Class II service within the  zone of  consideration for purposes of promotion to the  post  of Executive  Engineer under r.6(b) of Class I Rules.  Further- more, the State Government having relaxed the condition of 8 years’  service  by recourse to the proviso to  r.6(b),  re- spondents  Nos. 1 & 2 were similarly situate as’ the  appel- lants  and respondents Nos,5-24 as they were  all  recruited together as Assistant Engineers in Class II service in  1975 and they had all rendered about 31/2 years’ service in  that class and therefore failure on the part of the State Govern- ment to consider the case of. respondents Nos. 1 & 2 for 618 purposes of promotion to the post of Executive Engineer  was tantamount to the total exclusion of a class within a  class and  was thus per se discriminatory. Lastly, the  action  of the  State  Government  in making ad-hoc  promotion  of  the appellants  and respondents Nos..5-24 was wholly mala  fide. Learned counsel wanted us to draw an inference of mala  fide from  the fact that the Private Secretary to Chief  Minister was present at a meeting held in the room of the  Irrigation Minister  where  the list of promotion was  settled.  It  is suggested that initially the names of respondents Nos. 1 & 2 figured in the list but later on wholly extraneous consider- ations their names were deleted.     It  would  be convenient at this stage to refer  to  the relevant provisions of the Punjab Service of Engineers Class I,  P.W.D.  (Irrigation Branch) Rules, 1964, as  amended  in 1975.  The  amendment  effected in 1975  substituted  a  new

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r.2(5) for the existing r.2(5) and it defines the expression ’Class II Service’ as follows:               "2(5).  ’Class  II  Service’  shall,  for  the               purpose of promotion to the service, comprises               of  members  of the Haryana Service  of  Engi-               neers, Class II (Irrigation Branch); Temporary               Engineers, Officiating Sub-Divisional Officers               and  Officiating Assistant  Design  Engineers,               except  those promoted in excess of the  quota               fixed  under rule 6 of the Haryana Service  of               Engineers,  Class II, Public Works  Department               (Irrigation Branch) Rules, 1970." The  qualifications of persons eligible for appointment  are prescribed in r.6 which is in these terms:               "6.  Qualifications:  No person shall  be  ap-               pointed to the service unless he--               (a) Possesses one of the University Degrees or               other qualifications prescribed in Appendix  B               of these Rules;                         Provided  that Government may  waive               this qualification in the case of a particular               officer belonging to Class II Service;               (b)  In  case of an appointment  by  promotion               from  Class II Service, has completed in  that               class  of  service for a period of  ten  years               from  the  commencement of  these  rules,  six               years  service  and after  that  period  eight               years service;               619                        Provided  that  if it appears  to  be               necessary to promote an officer in the  public               interest,  the Government may, for reasons  to               be recorded in writing either generally or  in               any  individual case reduce the period of  six               or  eight years to such extent as it may  deem               proper  in consultation with the  Finance  De-               partment.               Explanation: For the purpose of this clause in               computing of the period of six or eight  years               any  service rendered as a Temporary  Engineer               shall be taken into account". We  may  next  set out r.8 which deals with  the  method  of promotion:               "8. Appointment by promotion: (1) A  Committee               consisting  of  the  Chairman  of  the  Public               Service  Commission and where the Chairman  is               unable  to  attend  any other  member  of  the               Commission  representing  it,  the  Secretary,               P.W.D.  (Irrigation  Branch)  and  the   Chief               Engineer,  Punjab,  P.W.D.  Irrigation  Branch               shall be constituted.               (2).  The Government shall prepare a  list  of               eligible  and suitable persons for  promotions               in order of their seniority in Class II  Serv-               ice which shall be reckoned:               (a)  in  the case of a member of  the  Haryana               Service  of  Engineers, Class  11  (Irrigation               Branch) from the date of his continuous  offi-               ciation as Sub-Divisional Officer or Assistant               Design  Engineer or appointment  as  Temporary               Engineer, as the case may be:               (b)  in the case of a Temporary Engineer  from               the date of his appointment as such."     As  a matter of construction, the words ’Class II  serv- ice’  in  r.8(2)  introduced by amendment in  1975  must  be

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construed to have the same meaning as the expression  ’Class II  service’  as  defined in r.2(5). We  find  the  language employed  by  the  framers of the rules  in  the  definition clause in r.2(5) has been departed from in the definition of the  expression ’Class II service’ and it is  generally  but not  always  a fair presumption that the alteration  in  the language used in the new definition in r.2(5) was intention- al.  Prior to the amendment in 1975, the expression,  ’Class II Service’ as defined in r.2(5) meant the members of  Class II service including Temporary Engineers. As the State stood 620 in need of many more Executive Engineers it became essential to take steps 3 recruit not only persons who strictly belong to Class II Service proper but also to bring within the zone of  consideration  others who are not members of  Clause  II Service e.g. Offg. Sub-Divisional Officers and Offg. Assist- ant  Design Engineers who would not be so included. The  key to the interpretation of the definition clause in r.2(5)  is the words "for the purpose of promotion". The effect of  the enlarged  definition of Class II Service in r.2(5)  is  that these  words when found in the Act must, for the purpose  of promotion, be understood in that context in a certain  sense i.e. to include not only members of Class II Service includ- ing Temporary Engineers but also Offg. Sub-Division Officers and Offg. Assistant Design Engineers who, but for the inter- pretation clause, would not be so included. That would be in consonance  with  the purpose and object of  the  amendment. There is reason why ’the words ’Class II Service’ in  r.8(2) introduced in 1975 must bear the same meaning as the expres- sion  ’Class  II Service’ as defined in r.2(5) as  both  the provisions  deal  with the same subject  i.e.  promotion  of members  of Class II Service to the post of Executive  Engi- neer  in Class I Service. The mode of promotion to the  post of Executive Engineer is as laid down in r.8(2). Now, r.8(1) remains unaltered. R.8(1) directs that a committee  consist- ing  of  the Chairman of the Public  Service  Commission  or where  the Chairman is unable to attend any other member  of the  Commission representing it, Secretary to  the.  Govern- ment,  P.W.D. (Irrigation Branch), and the  Chief  Engineer, Punjab, Irrigation Branch shall be constituted. Under r.8(2) introduced in 1975, the Government has to prepare a list  of eligible  and  suitable persons for promotion  in  order  of their seniority in Class II Service which shall be  reckoned (a) in the case of a member of the Haryana Service of  Engi- neers,  Class  II, Irrigation Branch, from the date  of  his continuous officiation as Sub-Divisional Officer or  Assist- ant Design Engineer or appointment as Temporary Engineer, as the  case  may be. (b) In the case of a  Temporary  Engineer from  the date of his appointment as such. These  provisions can lead to no other conclusion but that the list of  eligi- ble  and suitable persons for promotion has to be drawn  not only  comprising  of  regular members of  Class  II  SerVice including  Temporary Engineers in order of  their  seniority but also of Offg. Sub-Divisional Officers or Offg. Assistant Design  Engineers  in that class of service  from  the  date specified  therein. Apparently, the requirements of  rr.8(1) and 8(2) have not been complied with. All that exists is the combined seniority list of Assistant Engineers belonging  to Class II Service in order of their seniority prepared by the Public Service Commission which incidentally has never  been challenged. 621     The  meaning of the word ’as’ in the collocation of  the words  ’any  service rendered as a  Temporary  Engineer’  in Explanation  to r.6(b) of the Class I Rules  must  obviously

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mean  ’in the capacity of’. In Dr. Asim Kumar Bose v.  Union of  India & Ors., [1983] 1 SCC 345 the question was  whether the  appellant  who was a Radiologist in  the  Maulana  Azad Medical  CoLlege  which was a post belonging  to  Specialist Grade  II  could be appointed to the post  of  Professor  of Radio-Therapy  in that College by direct  recruitment  under r.8(2)  of  the Central Health  Service  (Amendment)  Rules, 1966.  In  1971 there were certain amendments in  the  Rules prescribing  the  mode in which the posts of  Professor  and Associate  Professor could be filled in and paragraphs  2(b) and 3 of Annexure I to the Second Schedule and sub-r.(2a) to r.8 were inserted which brought about a change. These amend- ments brought about a change inasmuch as they provided for a vertical channel of promotion to the teaching post upto  the post  of  Associate Professor. At p.363 of the  Report  this Court  referred  to the report of the Third  Pay  Commission where it was observed at p. 173.               "While  the Specialists on the  teaching  side               can  hold posts of hospital  specialists,  the               latter  cannot be promoted to  teaching  posts               because of lack of teaching experience." Presumably,  the Ministry of Health on that view  held  that the word ’as’ in paragraphs 2(b) and 3 of Annexure I to  the Second  Schedule and sub-r. (2a) of r.8 makes holding  of  a post  in  the cadre a condition precedent to the post  of  a Professor or an Associate Professor. In that context, it was observed:               Normally, a Professor or an Additional Profes-               sor in a medical college or a teaching  insti-               tution can be appointed by direct  recruitment               from  amongst  persons  holding  the  post  of               Associate Professor or Assistant Professor  in               the concerned speciality in a medical  college               or a teaching institution having at least  six               years’  teaching experience out of  12  years;               standing in the Grade through the Union Public               Service Commission. An Associate Professor  in               the medical coLlege or a teaching  institution               can  only  be promoted  from  amongst  persons               holding  the post of Reader or Assistant  Pro-               fessor  having at least five  years’               teaching experience in’ the concerned special-               ity  by the Departmental Promotion  Committee.               We are inclined to the view that the word "as"               in the collocation of the words used "at least               six    years’    experience    as    Associate               Professor/Assistant Profes-               622               sor/Reader" in paragraph 2(b) and of the words               "at   least   five   years’   experience    as               Reader/Assistant Professor" in paragraph 3 and               sub-rule  (2-A) of Rule 8 must be  interpreted               in  its  ordinary sense  as  meaning  teaching               experience  gained  "in the capacity  of".  In               Black’s Law Dictionary, 5th Edn., p. 104,  the               meaning of the word "as" as given is: "Used as               an  adverb, etc., means like, similar  to,  of               the  same  kind, in the same  manner,  in  the               manner  in which." In Shorter Oxford  Diction-               ary, 3rd Edn., p. 111, the word "as" is stated               to  mean:  "The  same as,  in  the  character,               capacity, role of". In spite of all this, the contention of respondents Nos. 1 & 2  that they were entitled to the benefit of the  period  of service rendered by them as Temporary Engineer on an  ad-hoc

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basis  w.e.f. January 2, 1971 and May 19, 1969  respectively prior to their appointment as Assistant Engineers on regular basis  on  April 21, 1975 for purposes  of  reckoning  their eligibility  under r.6(b) read with the Explanation  thereto of the Class I Rules as also for purposes of their seniority in  the cadre of Assistant Engineers, cannot  prevail.  They were  not recruited under paragraphs 8.312 to 8.316  of  the Manual  of Administration, Public Works Department.  In  the erstwhile  State  of Punjab there was a  distinct  class  of Engineers  designated  as Temporary Engineers.  All  persons appointed  as  Temporary Engineers had to  face  the  Public Service Commission for selection to the post under rr.4  and 5  of  the  Punjab Service of  Engineers,  Class  II.  P.W.D (Irrigation  Branch) Rules, 1941. Under the Rules  the  term ’Temporary Engineer’ was defined in r.2(f) to mean an  engi- neer in the service of the Public Works  Department,  Punjab whose  appointment was temporary within the meaning  of  the Fundamental Rules, was pensionable and who was not a  member of  any  regular service. The word ’service’ as  defined  in r.2(g)  of the Rules meant the Punjab Service of  Engineers, Class II, Irrigation Branch. R.5 provided that no  Temporaty Engineer could be taken into service or member of the  Over- seers  Engineering  Service, Punjab promoted unless  he  had been  declared by the Commission on the report of the  Chief Engineer to be fit for the service, was serving the  Depart- ment  and  held an appointment for not less than  two  years continuously before the date of entry into the service.     Next  came  the Punjab Service of Engineers,  Class  II, P.W.D.  (Irrigation  Branch)  Rules,  1970.  The  expression ’member of service’ was defined in r.2(12) to mean an  offi- cer appointed substantively to a cadre post. The definitions of the word ’service’ and of the term 623 ’Temporary  Engineer’ in r.2(15) and (16) remained the  same except for the difference that the word ’temporary’  carried the  meaning  as given in the Civil Service  Regulations  in place of the Fundamental Rules. R.6 provided for the  manner of   recruitment  of  Temporary  Engineers  from   different sources,  in the proportions and the order  indicated.  Sub- r.(3)  thereof  provided that in case a  candidate  was  not available from sources 1 and 3 i.e. by direct recruitment or by  promotion,  and a person had to be  appointed-in  public interest,  as a stop-gap arrangement, the period of  service rendered  by such person shall not be reckoned for the  pur- pose  of seniority. Sub-r. (4) provided that the  Government could fill a short term vacancy in the exigencies of  public service,  after recording specific reasons, for  the  period not  exceeding  six months from  the  Overseers  Engineering Service, Irrigation Branch. It is quite apparent under these rules  that appointment of respondents Nos. 1 & 2 as  Tempo- rary Engineers on an ad-hoc basis was de hors the rules.     It may seem to be some illogical that though respondents Nos.  1 & 2 were appointed as Temporary Engineers on an  ad- hoc  basis, they should be deprived of the period  of  their officiation  as such till they were absorbed to the post  of Assistant  Engineer  on a regular basis through  the  Public Service Commission on April 21, 1975. That is a legal conse- quence  which cannot be avoided on well-settled  principles. In their case the length of continuous officiation cannot be the  basis  for reckoning their seniority since  they  never became  members of Class II Service prior to  their  absorp- tion. On the terms of appointment of respondents Nos. 1 & 2, it  was  specifically provided that  their  appointment  was purely  on an ad-hoc basis for a period of six  months  from the  date  of their joining the post on a  fixed  salary  of

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Rs.400+ allowances and that their services were liable to be terminated  without  notice. It was also  specifically  men- tioned  that the appointment as such Temporary Engineers  on ad-hoc basis would not count towards seniority or  increment in  their  salary. It was further stated that the  posts  of Temporary Engineers in Class II Service would be  advertised in  due course by the Public Service Commission and that  if they  were  not selected by the Commission,  their  services would be terminated without notice- They are also  intimated that their inter-se seniority among the Temporary  Engineers so  recruited would be in the order of merit in the list  of candidates as settled by the Commission. It is common ground that  respondents Nos. 1 & 2 were not recruited through  the Public Service Commission. It was not till July 8, 1973 that the  Secretary to the Commission conveyed to the State  Gov- ernment  the  approval of the Commission to the  ad-hoc  ap- pointment of 251 624 Temporary  Engineers  beyond the period of six  months  till regular  appointments  were made in the posts  of  Assistant Engineers  through  the Commission. These are the  facts  on which  there is no doubt or difficulty as to the  principles applicable.     According  to the accepted canons of  service  jurispru- dence, seniority of a person appointed must be reckoned from the  date he becomes a member of the service. The date  from which seniority is to be reckoned may be laid down by  rules or instructions (a) on the basis of the date of  appointment (b) on the basis of confirmation (c) on the basis of regula- tion  of service (d) on the basis of length of  service,  or (e)  on any other reasonable basis. It is well-settled  that an ad-hoc or fortuitous appointment on a temporary or  stop- gap  basis cannot be taken into account for the  purpose  of seniority  even if the appointee was qualified to  hold  the post  on  a regular basis, as such temporary  tenure  hardly counts for seniority in any system of service jurisprudence. In  somewhat similar circumstances, in the case of State  of Gujarat v. C.G. Desai & Ors., [1974] 2 SCR 255 the  question for  consideration was whether in the case of  Deputy  Engi- neers directly recruited through the Public Service  Commis- sion  by competitive examination, the service, if any,  ren- dered by them as officiating Deputy Engineers prior to their appointment  to Class II Service i.e. during the  pre-selec- tion  period,  could be taken into account for  purposes  of their eligibility for promotion as Executive Engineers under r.7(2)  of the Bombay Engineering Service Rules, 1960  which provided  for  a period of 7 years’ experience in  Class  II Service.  The Government’s stand was that the  service  ren- dered  by the direct recruits prior to their appointment  to the  Class  II Service could not be taken  into  account  in computing  their eligibility of 7 years’ experience in  that class  of  service and the Court upheld the  stand.  It  was contended  on behalf of the promotees that if for  promotion to  the post of Executive ’Engineer in Class I  Service  the period  of  eligibility of 7 years’ experience in  Class  II Service  was  to start from the date of absorption  in  that class of service, then, for most of them there would be rare chance  of ever getting promotion as  officiating  Executive Engineers  and as many of them had less than 7 years  to  go before  attaining the age of superannuation. The  contention was  that r.7(2) of the Rules did not permit  discrimination between  the promotees and direct recruits in the matter  of computing 7 years’ service for further promotion as  offici- ating  Executive Engineers. The contention was  repelled  on the  ground that direct recruits and promotees in  Class  II

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Service  constituted two distinct groups or classes and  the classification was based on intelligible differentia, and it was observed: 625               "If a person, like any of the respondents,  to               avoid the long tortuous wait leaves his  posi-               tion   in   the   ’never-ending’   queue    of               Temporary/Officiating  Deputy  Engineers  etc.               looking  for promotion, and takes a short  cut               through the direct channel, to Class II  Serv-               ice, he gives up once for all, the  advantages               and disadvantages that go with the channel  of               promotion  and accepts all the  handicaps  and               benefits  which attach to the group of  direct               recruits. He cannot, after his direct recruit-               ment  claim  the benefit of  his  preselection               service  and  thus have the best of  both  the               worlds. It is well-settled that so long as the               classification  is reasonable and the  persons               falling  in the same class are treated  alike,               there  can be no question of violation of  the               constitutional guarantee of equal treatment." In  taking  that view, the Court avoided a  doctrinaire  ap- proach and approached the problem from a pragmatic view.  It was said:               "If the claim of the respondents to the count-               ing of their pre-selection service is  conced-               ed,  it will create serious  complications  in               running the administration; it will result  in               inequality of treatment rather than in  remov-               ing it. If the pre-selection service as  Offi-               ciating  Deputy Engineers of  direct  recruits               having such service, is taken into account for               the purpose of promotion, it would create  two               classes  amongst the same group and result  in               discrimination  against those direct  recruits               who had no such pre-selection service to their               credit."     It would be repugnant to all accepted concepts of  serv- ice  jurisprudence if the claim of persons like  respondents Nos.  1 & 2 who were employed as Temporary Engineers on  ad- hoc  basis de hors the rules for six months at a  time  were extended the benefit of their continuous officiation as such ad-hoc  employees  in reckoning  their  seniority  vis-a-vis direct  recruits  in  considering  their  eligibility  under r.6(b) of the Class I Rules for promotion to a higher  grade or  post of Executive Engineer. In A.P.M. Mayakutty etc.  v. Secretary,  Public Service Department, [1977] 2 SCR 937  the question was whether the period of service rendered by  such ad-hoc  employees  appointed under r. 10(a)  (i)(1)  of  the Madras  State & Subordinate Services Rules purely on an  ad- hoc basis and as matter of stop-gap arrangement, were  enti- tled to count for the purpose of seniority, their period  of service on ad-hoc basis during which they served in a  stop- gap arrangement. It was held 626 that  such service could not be taken into account  for  the purpose of seniority from the date of their initial appoint- ment.  The  Court speaking through  Chandrachud,  CJ.  after referring  to the provision contained in r.  10(a)(i)(1)  of the Rules, stated:               "This  provision  contemplates the  making  of               temporary appointments when it is necessary in               the public interest to do so* to an  emergency               *owing which has arisen for filling a  vacancy

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             immediately. Such appointments, in terms,  are               permitted to made otherwise than in accordance               with  the  rules. The letters  of  appointment               issued  to  the appellants  mention  expressly               that   they   were   appointed   under    rule               10(a)(i)(1),   that  the   appointments   were               "purely  temporary necessitated on account  of               the  non-availability  of  regularly  selected               candidates  conferring  no  claim  for  future               appointment  as  Junior Engineers   ....   and               that the appointment is liable to be terminat-               ed  at any time without previous  notice."  In               face  of  the provisions of the rule  and  the               terms of the appointment it seems to us  clear               that the appellants were appointed purely as a               matter  of stop-gap or emergency  arrangement.               Since  such service cannot be taken  into  ac-               count  for purposes of seniority,  the  appel-               lants  cannot contend that the entire  service               rendered  by them from the date of their  ini-               tial  appointment must count for  purposes  of               seniority." The Court distinguished the case of C.P. Damodaran Nayar  v. State of Kerala & Ors., [1974] 2 SCR 867 on the ground  that the  temporary  service rendered by a District  Munsiff  re- cruited  in  a  regular manner through  the  Public  Service Commission  could  not, by any stretch  of  imagination,  be considered  to be purely as a matter of fortuitous or  stop- gap arrangement. The distinguishing features in  Mayakutty’s case, in the words of Chandrachud, CJ. were:               "The  distinguishing  feature  of  that  case,               which  is highlighted in the judgment  of  the               Court,  is  that  the  appellant  therein  was               "appointed  in  a regular manner  through  the               Public  Service Commission" and therefore  his               appointment  could  not  "by  any  stretch  of               imagination" be described as having been  made               to fill a purely stop-gap or fortuitous  vacu-               um.  In our case the initial  appointment  was               not  only  made without any reference  to  the               Public  Service  Commission  but  the  various               rules and the terms of the appellants’               627               appointment  to which we have drawn  attention               show that the appellants were appointed purely               as a matter of fortuitous or stop-gap arrange-               ment.  The concurrence of the  Public  Service               Commission  to the continuance of  the  appel-               lants in the posts filled by them first  after               the expiry of three months and then after  the               expiry  of one year, was obtained not  with  a               view  to regularising the  appointments  since               their inception but for the purpose of meeting               the  requirements of a provision  under  which               such concurrence is necessary to obtain if  an               appointment  made  without  selection  by  the               Public Service Commission is required for  any               reason to be continued beyond three  months or               a year." That  precisely is the case here. It must therefore be  held that the period of service rendered by persons like respond- ents Nos. 1 & 2 who were appointed on ad-hoc basis purely as a stop-gap arrangement for six months at a time de hors  the rules, cannot be considered for purposes of their  seniority in  Class II Service or in reckoning their eligibility of  8

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years’  service  in that class of service  under  r.6(b)  of Class I Rules.     We  feel it necessary to emphasise that  the  principles laid down by this Court in the two cases of N.K. Chauhan and S.B.  Patwardhan  which were reiterated in  Baleshwar  Das’s case and subsequently followed in several other cases do not lay down any principle to the contrary. These cases are  not an  authority for the proposition relied upon. On  the  con- trary,  they clearly proceed on the principle  that  persons appointed on an ad-hoc basis or for fortuitous reasons or by stop-gap  arrangement, constitute a class which is  separate and  distinct from those who are appointed to posts  in  the service in strict conformity with the rules of  recruitment. In the case of S.B. Patwardhan, Chandrachud, CJ. observed:               "We however hope that the Government will bear               in  mind the basic principle that if  a  cadre               consists  of  both  permanent  and   temporary               employees, the accident of confirmation cannot               be  an intelligible criterion for  determining               seniority  as  between  direct  recruits   and               promotees.  All  other  factors  being  equal,               continuous  officiation  in  a  non-fortuitous               vacancy  ought to receive due  recognition  in               determining  rules  of  seniority  as  between               persons  recruited from different sources,  so               long as they belong to the same cadre,               628               discharge  similar functions and bear  similar               responsibilities." In  Baleshwar  Das’s  case, Krishna lyer,  J.  affirmed  the principle in his own charismatic and picturesque language:               "We  must emphasise that while  temporary  and               permanent posts have great relevancy in regard               to the career of government servants,  keeping               posts temporary for long, sometimes by  annual               renewals  for several years, and  denying  the               claims  of  the incumbents on the  score  that               their  posts are temporary makes no sense  and               strikes us as arbitrary, especially when  both               temporary  and permanent appointees are  func-               tionally identified. If, in the normal course,               a post is temporary in the real sense and  the               appointee knows that his tenure cannot  exceed               the  post in longevity, there cannot  be  any-               thing  unfair  or capricious in  clothing  him               with  no fights. Not so, if the post  is,  for               certain  departmental  or like  purposes,  de-               clared temporary, but it is within the ken  of               both the government and the appointee that the               temporary  posts are virtually long-lived.  It               is  irrational  to  reject the  claim  of  the               ’temporary’ appointee on the nominal score  of               the  terminology  of the post.  We  must  also               express emphatically that the principle  which               has  received  the sanction  of  this  Court’s               pronouncements is that officiating service  in               a  post is for all practical purposes of  sen-               iority as good as service on a regular  basis.               It  may  be permissible,  within  limits,  for               government  to ignore officiating service  and               count  only  regular service  when  claims  of               seniority  come before it, provided the  rules               in that regard are clear and categories and do               not  admit of any ambiguity and cruelly  arbi-               trary  cut-off of long years of  service  does

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             not  take place or there is  functionally  and               qualitatively,  substantial difference in  the               service  rendered in the two types  of  posts.               While  rules regulating conditions of  service               are within the executive power of the State or               its legislative power under proviso to Article               309,  even so, such rules have to be  reasona-               ble,  fair and not grossly unjust if they  are               to survive the test of Articles 14 and 16." We must also refer to the decision in A. Janardana v.  Union of  India  &  Ors., [1983] 3 SCC 60 1 where  Desai,  J.  had occasion to observe: 629               "In other words after having rendered  service               in  a  post  included in the  service,  he  is               hanging outside the service, without finding a               berth  in service, whereas direct recruits  of               1976  have found their place and berth in  the               service.  This  is the situation  that  stares               into one’s face while interpreting the  quota-               rota rule and its. impact on the service of an               individual.  But  avoiding  any   humanitarian               approach to the problem, we shall strictly  go               by  the relevant Rules and precedents and  the               impact  of  the Rules on the  members  of  the               service  and  determine whether  the  impugned               seniority  list is valid or not.  But,  having               done that we do propose to examine and  expose               an extremely undesirable, unjust and inequita-               ble  situation emerging in  service  jurispru-               dence  from  the  precedents  namely,  that  a               person already rendering service as a promotee               has  to go down below a person who comes  into               service decades after the promotee enters  the               service and who may be a schoolian, if not  in               embryo, when the promotee on being promoted on               account  of the exigencies of service  as  re-               quired  by  the Government  started  rendering               service.  A  time has come to  recast  service               jurisprudence  on  more  just  and   equitable               foundation by examining all precedents on  the               subject to retrieve this situation." To the same effect are the decisions in O.P. Singla v. Union of  India, [1984] 4 SCC 450; G,S. Larnba v. Union of  India, [1985] 2 SCC 604; P.S. Mahal v. Union of India, [1984] 4 SCC 545 and Pran Krishna Goswami & Ors. v. State of West  Bengal &  Ors.,  [1985]  Suppl. SCC 221. It must now  be  taken  as well-established  after these decisions that in the  absence of  any  other valid principle of  seniority,  the  inter-se seniority  between direct recruits and promotees  should  as far  as possible be determined by the length  of  continuous service whether temporary or permanent in a particular grade or  post (this should exclude periods for which an  appoint- ment   is   held  in  a  purely   stop-gap   or   fortuitous arrangement).  No doubt, there are certain  observations  in the  two cases of G.P. Doral and Narender Chadha which  seem to  run counter to the view we have taken, but  these  deci- sions  turned on their own peculiar facts and are  therefore clearly distinguishable and they do not lay down any rule of universal application.     For  all these reasons, the appeal succeeds and  is  al- lowed. The judgment and order of the High Court quashing the impugned notification of the State Government dated December 20, 1978 making 630

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ad-hoc promotions of the appellants and respondents Nos.  5- 24 are set aside. Instead, we direct that the impugned order of  the  State  Government making ad-hoc  promotions  of  62 Assistant Engineers including the appellants and respondents Nos. 5-24 as officiating Executive Engineers will stand  and they  shall  continue to function as such,  subject  to  the terms  and conditions contained in the aforesaid order  till the  process  of making appointments by promotion  to  these posts is completed. We hope and trust that the State Govern- ment will strike a just balance between the competing claims of these 62 Assistant Engineers promoted as Executive  Engi- neers on ad-hoc basis, and persons like respondents Nos. 1 & 2  appointed as Temporary Engineers on an ad-hoc  basis  who could at the most claim that they should be given the  bene- fit  of the period of service from April 21, 1975 when  they were  recruited  as Assistant Engineers through  the  Public Service Commission, provided they satisfy the test of eligi- bility  of  8 years’ experience in that  class  of  service, while considering the cases of all eligible members of Class II  Service for promotion to the post of Executive  Engineer in Class I Service in accordance with law and will  complete the process of appointment within six months from today. There shall be no order as to costs. S.R.                                                  Appeal allowed. 631