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CASE NO.: Appeal (civil)  11961-11963 of 1996

PETITIONER: Santosh Kumar and Others.                                        

RESPONDENT: G.R. Chawla and Others                                   

DATE OF JUDGMENT: 10/09/2003

BENCH: M. B. Shah & Dr. AR. Lakshmanan.

JUDGMENT: J U D G M E N T  

WITH

Civil Appeal Nos. 11964 of 1996 and 11965 of 1996

Dr. AR. LAKSHMANAN, J.

The questions involved in these appeals are identical and they are  being disposed of by this common judgment.  

These appeals are directed against the common judgment dated  06.05.1994 passed by the High Court of Judicature at Allahabad in Writ  Petition Nos. 731 of 1991, 251 of 1994, 309 of 1994, 1897 of 1980 and 1663  of 1991.

The facts, in short, are as follows:-

According to the appellants, they were eligible for appointment to the  posts in question and the appointments were made on the basis of selection  made pursuant to the public advertisement and after considering claims of all  eligible candidates.  In these circumstances, it was submitted that the entire  length of service of the appellants is entitled to be considered for the purpose  of seniority as held by the Constitution Bench of this Court in the case of  Direct Recruit Class II Engineering Officers’ Association s vs. State of  Maharashtra and Others (1990) 2 SCC 715.  However, the High Court held  that ad hoc services cannot be counted for the purpose of seniority.  It was  further submitted that if the ad hoc appointment is made after satisfying all  tests for regular appointment and after considering the claims of all eligible  candidates, these appointments must be treated as substantive appointments  for the purpose of seniority and that the High Court fell in error in excluding  such period from seniority.

The High Court pronounced the impugned judgment whereby it was  held that the appellants/writ petitioners who are ad hoc appointees are not  entitled to claim seniority on the basis of continuous officiation.  It was also  held that the direct recruit appointees/respondents were, in fact, appointed on  16.09.1982 and the corrections were made in their appointment letters mala  fide.  The High Court also disbelieved the affidavit filed on behalf of the State  Government and the Director of Medical Services.  Accordingly, the High  Court quashed the seniority list and directed preparation of fresh seniority list  in accordance with the guidelines mentioned therein.   

In most of the writ petitions, dispute of inter se seniority has been  raised.  While raising dispute of seniority, the selection made by the Pubilc  Service Commission (hereinafter referred to as "the PSC") was also  challenged.  In one or two of the writ petitions, recommendations of the PSC  were accepted by the State Government.  In the light of the facts and

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circumstances, the High Court held as follows:- "We hold that the inter se seniority of all the Inspectors of Drugs,  whether promotees or direct selected by the Public Service  Commission deserved to be determined in accordance with the  merit prepared by the Public Service Commission.  As far as those  Drugs Inspectors who either did not appear before Public Service  Commission or appeared but failed to be selected and whose  services where regularised by the State Government would be  placed below the persons selected by Public Service Commission in  accordance with the Rule-7 of the Regularisation Rules.  

In view of what has been indicated herein above writ  petitions bearing No. 731/91 G R Chawls & Ors V/s State of U.P. &  Ors and No. 251 [SB]/1994 A K Pandey and others V/s State of U.P.  & others partly succeeds.  A writ in the nature of Certiorari quashing  the order dated 12-1-1991 passed by Director General, Medical  Health and Family Welfare, Govt. of U.P. determining the seniority of  Inspectors of Drugs, is issued.  Opposite parties are directed to re- determine the seniority of Inspectors of Drugs in the light of the  observations mentioned in this order.  Writ Petitions bearing Nos.  1897/80, 1663/91 and 309 [SB]/1994 are dismissed."     

Dis-satisfied with the above judgment, the writ petitioners have come  up on appeal to this Court and contended that the High Court has completely  ignored the pleadings of the appellants/writ petitioners and failed to  appreciate that the controversy was not confined to the determination of  seniority amongst the promotees and direct recruits but pertain to the  appellants’ claim for regularisation.  Learned counsel for the appellants  submitted that the appellants were appointed on the basis of public  advertisement and on the recommendations of a newly constituted Selection  Committee and after considering all the eligible candidates and that the  appointees continued on the post uninterruptedly till regularisation in their  services.  In these circumstances, it was submitted that the entire length of  service of the appellants are entitled to be considered for the purpose of  seniority.  It was further argued that the appellants having been fully qualified  and appointed after facing the Selection Committee duly constituted for the  said purpose were entitled for regularisation prior to any direct recruitments  as contained in Rule 4 (1) and Rule 7 of the Regularisation Rules.  It was also  submitted that the High Court has erred in reckoning the seniority of the  respondents/direct recruits from 16/17.09.1982 which date was specifically  scored out and for valid reasons, namely, to comply with the provisions of  Rule 4(1) of the Regularization Rules.  It was also further submitted that the  High Court has failed to appreciate that the respondents actually joined the  post after 23.09.1982 only and hence they could not have been granted  seniority from 16/17.09.1982.  It was also argued that the appellants became  the members of the services from the date of joining the post and not from the  date of their regularisation vide Government Order dated 22.09.1982.   Learned counsel for the respondents, per contra, submitted that the High  Court has dealt with every aspect/arguments led by both the parties before it  in accordance with the principles laid down by this Court in a number of  cases.   

We have perused the judgment of the High Court.  Three issues were  raised before the High Court which read as under:

1.      That the State Government has no authority to disturb the merit  list of the PSC and adopt the policy of pick and choose out of  the merit list prepared by the PSC; 2.      That the officials of the Department of Medical Health and  Family Welfare has no authority to manipulate the records in  order to favour some of the candidates who have been  regualirsed under the Regularization Rules. 3.      Even according to Rule 7 of the Regularisation Rules, the  respondents herein were entitled to be placed above the  candidates who have been regularised under the

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Regularisation Rules.

In order to appreciate the correct position, few facts as regards the  appointment through PSC with special reference to the appellants/writ  petitioners before this Court is necessarily to be stated.

In the year 1979, the State Government framed the U.P.  Regularisation of Ad hoc Appointments (for posts within the purview of the  PSC) Rules, 1979 which came into effect from 14.05.1979 and in the year  1980, the State Government framed U.P. Inspectors of Drugs (Services)  Rules, 1980 which provided for the direct recruitment for the post of inspector  of drugs through the PSC.  In the year 1976, a requisition for selection of 27  candidates on the post of Inspectors of Drug was sent by the U.P.  Government to the UPPSC.  On 14.05.1977 an advertisement was issued by  the UPPSC for the said 27 posts in which qualifications for the candidates  who wanted to apply was also given.  In pursuance of the said advertisement,  on 21.05.1977, the Department of Health instructed all the departmental  candidates to apply for their appointment against the post advertised by the  PSC.  Interviews were held in the month of December, 1980 and the result  thereof was communicated to the State of U.P. on 14.10.1981.  On the said  date, the PSC sent its recommendation to the State Government giving the  list of 25 candidates for appointment in order of merit which included 11  candidates who were already working as Drug Inspectors on ad hoc basis in  the department.   

On receipt of this list, in the Department in October, 1981 some of the  candidates including the appellants/writ petitioners herein who were already  working in the Department found their names in the merit list below the  candidates over directly recruited and as such they persuaded the State  Government to initiate the regularisation under the Regularisation Rules  which had already come into force in 1979.  The Director, Medical Health and  Family Welfare, vide its order dated 16.09.1982 by means of a letter ordered  that subject to the seniority vis-Ã -vis other persons appointed to the post from  time to time, the Department at a later date appointed the candidates who  were direct recruits.  Subsequently, on 17.09.1982 itself such candidates  were also posted at different places.  The candidates who are already  working on ad hoc basis and had influenced the Department to initiate  regularisation proceedings when came to know of such orders tried to  manipulate at the lower level in the Department and managed to get despatch  number as well as the dates scored out.  Similarly, despatch number was  scored out in many instances.  Photocopies of the letters dated 16.09.1982  and 17.09.1982 have been marked as Annexures A & B.  A perusal of  Annexures A and B would show that the Director, Medical Health had issued  the letter dated 16.09.1982 and Food and Drug Controller issued the letter  dated 17.09.1982 under their own signatures with the date under the  signatures, these dates under the signatures could not be changed by the  officials who tried to manipulate in this regard.  According to the respondents,  the manipulations were done by the officials because they could manage to  get their appointment letter issued on 22.09.1982 with the despatch No. 8165  i.e. prior to the despatch No. mentioned in the letter dated 16.09.1982 after  scoring out the same.  This letter dated 22.09.1982 has been marked as  Annexure-C.  On 12.01.1991, the Department issued seniority list in which  regularised drug inspectors appointed on 22.09.1982 were allowed to steal  march over the direct recruits who became the members of service on  16/17.09.1982.  As already noticed, being aggrieved by the seniority list, the  respondents herein challenged the same before the High Court of Allahabad  by filing writ petition.

It was argued on behalf of the regularised Drug Inspectors that their  seniority should reckon from the date they were appointed as Drug Inspectors  and that their regularisation preceded with the appointment of directly  recruited persons and, therefore, they should be placed above in the seniority  list.  It was also stated in the reply that the persons who have been selected  by the PSC did not possess the requisite qualification.  At the time of hearing,  it was brought to our notice that most of the appellants/writ petitioners have

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no locus standi to plead as their regularisation was not in accordance with the  Regularisation Rules.  It was argued that according to Regularisation Rules,  only those persons who were directly recruited on ad hoc basis before  01.01.1977 and were continuing in service as such on the date of  commencement of these Rules were entitled for regularisation and that   appellant/writ petitioner Nos. 5,6 and 7 did not even qualify under this clause  as they were earlier appointed on temporary basis and after break in service  they were re-appointed in 1978 and as such they were not continuing in  service on ad hoc basis before 01.01.1977.  It was also brought to our notice  that as per Regularisation Rules, the candidates who possess requisite  qualifications prescribed for regular appointment at the time of such ad hoc  appointment would be eligible for regularisation and in the case of  appellant/writ petitioner Nos. 1-4 they did not possess the requisite  qualifications at the time of their appointment as such they were not entitled to  be regularised.

A perusal of the judgment of the High Court would clearly go to show  that the High Court has exhaustively dealt with all the issues and recorded a  finding after dealing with the principles laid down by this Court in regard to  such points/contentions.  The High Court also on the issue of cutting and  over-writing has given a definite finding on the point whether the State  Government was justified in adopting the policy of pick and choose from the  merit list prepared by the PSC.  The High Court, after taking into  consideration the principles laid down by this Court in a number of judgments,  recorded a finding as follows:- "It is evident that although in the instant case, recommendation of  the Public Service Commission was advisory in nature, it was open  for the Government either to accept the recommendation or decline  to accept the same but if it has chosen not to accept the  recommendation of the Commission the matter must have to be  placed before the Legislative Assembly, but in the instant case it  was not done.  As stated above, some of the promotees as well as  direct recruits, both were selected by Public Service Commission in  order of merit.  Instead of accepting the recommendation in toto, the  State Government regulairsed the services of certain promotees and  tried to allow the promotees to steal march over the direct recruits  when inter se seniority ought to have been determined in  accordance with seriatum of the merit list of the Public Service  Commission.  The contention of the State Government that as the  process of regularisation was at advance stage, hence no direct or  otherwise appointment could be made, unless the services of the  persons who were already working on ad-hoc basis were  regularised and were given appointment orders, when Rule-7 of the  U.P. Regularisation of Adhoc appointment (on posts within the  purview of Public Services Commission) Rules, 1979 clearly  indicates that a person appointed under these rules shall be entitled  to seniority only from the date of order of appointment after selection  in accordance with these rules and shall in all cases, be placed  below the persons appointed in accordance with the relevant service  rules, or as the case may be, the regular prescribed procedure, prior  to the appointment of such person under these rules.  There was no  impediment in the way of the State Government to have regularised  services of the promotees/ad-hoc Inspectors of Drugs.  But the State  Government adopted a policy of pick and choose, out of the list and  wrongly allowed them to steal a march over the direct recruits in the  matter of seniority which cannot be permitted.  As according to the  regularisation rules, itself, promotees/adhoc whose services were  regularised, only deserved to be placed below the persons  appointed in accordance with the relevant service rules.  The action  of the State Government by approving the list, prepared by  Commission in part and rejection in part was totally vitiated."

On the point whether the appellants/writ petitioners were entitled to the  seniority from the date of their original initial appointment, the High Court  observed as follows:-

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"In the present case rule of the seniority clearly provides that  seniority in any category or cadre post shall be determined from the  date of the order of substantive appointment.  The posts of Drug  Inspectors was within the purview of Public Service Commission.   But, ad-hoc appointments were made.  The said ad-hoc  appointments cannot be deemed to be the substantive  appointments.  It were in the nature of stop gap or fortuitous  appointments, hence the period during which ad-hoc appointees  worked, cannot be counted for the purposes of seniority."

Our attention was drawn to the appointment letters enclosed as  Annexure-9 at pages 152-156 of the special leave petition which would show  that the initial appointment of the appellants were on purely temporary as stop  gap arrangements.

As regards the qualification of the respondents herein, the High Court  has recorded a finding which is quoted below: "In most of the writ petition, dispute of inter se seniority has been  raised.  While raising dispute of seniority, the selection made by the  Public Services Commission was also challenged.  In one or two of  the writ petitions, recommendations of the Public Service  Commission were accepted by the State Government.  Thus the  appointment became final and a vested rights have been created in  favour of those who were selected.  In a proceedings for determining  the validity of the seniority list, it is not open for any person either  selected by Public Services Commission or whose services have  been regularised to challenge the selection made by the Public  Service Commission and the appointment made by the State  Government by the Public Service Commission was made in the  year 1981 and it would be unfair and unjust for this Court to declare  the selection void.  Hence, the third and last plea raised on behalf of  the ad-hoc/promotees fails."

After recording the finding, the High Court concluded that the inter se  seniority of all the Inspectors of Drugs whether promotees or direct selectees  by the PSC deserved to be determined in accordance with the merit prepared  by the PSC.  In this regard, the High Court has issued further directions with  reference to Rule 7 of the Regularisation Rules.

It was contended by learned counsel for the appellants that in view of  Rule 4, appellants are required to be regularised first and thereafter, newly  appointed direct recruits are required to be appointed/confirmed.  This  contention has no force.  This contention has to be negatived in view of the  specific finding by the High Court that direct recruits were appointed either on  16/17.09.1982 and the services of the appellants were regularised only on  22.09.1982.     

The common judgment passed by the High Court, in our view, does  not call for any interference and all the appeals fail and are dismissed.   However, there will be no order as to costs.