REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  948           OF 2009 (Arising out of SLP (C) No. 5094 of 2006)

UNION OF INDIA     … APPELLANT

VERSUS

DHARAM PAL ETC.              … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Union of India is  before us aggrieved by and dissatisfied with a

judgment and order dated 13.7.2005 passed by the High Court of Punjab

&  Haryana  at  Chandigarh  in  Civil  Writ  Petition  Nos.  8457/2000,

8458/2000 and 8489/2000.

3. Respondents herein joined the Railway services as Signal Khalasis

in S & T Department, Delhi Division, Northern Railway in the year 1970.

The  next  promotional  post  was  the  one  of  Material  Checking  Clerk

(MCC).   The  terms and  conditions  of  service  are  governed  by Indian

Railway Establishment  Manual  (IREM).   Rule  174  of  IREM regulates

procedure for appointment to Class-III (Group-C) posts i.e. Office Clerk.

It provides that the vacancies in the said category are to be filled from

two sources (i) 66-2/3% by direct recruitment through the agency of the

Railway Recruitment Boards; and (ii) 33-1/3% by promotion by selection

of specified Group ‘D’ staff.  We are concerned with the second one.   

4. Respondents,  thus,  could be appointed in  the  post  MCC only in

terms  of  the  procedure  of  selection  laid  down  therein.   The  selection

procedure for appointment in the grade of Office Clerk is laid down in

Chapter  II,  Section  B of  the  IREM and  as  per  Rule  219  therein,  the

selection procedure consists of written test and interviews.  In the written

test 50% of the questions are to be of objective type.   

5. On  and  from  5.9.1986,  the  respondents  and  several  other

employees  were  allowed  to  officiate  on  ad  hoc  basis  as  MCC.

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Indisputably,  for  the  said  purpose,  the  mandatory  procedure  for

promotion as contained in Rule 219 had not been followed.  Even some

of the employees, it is stated before us, had been working on officiating

basis even prior to them.   

The appointment letter reads as under:

“Sub: Adhoc promotion as MCC grade 260-400 (Rs.) under SI (9)-SID/I, and UMB II and DI/D- I, SRE.

The following senior most Khalasi grade 196-232 (Rs.)  under the  control  of  DST/UMB are hereby allowed to officiate as MCC Gr. 260- 400  Rs.  on  purely  ad  hoc  basis  against  the existing vacancies.

1. Sh. Dharam Pal Kh. Under I/D-I/UMB. 2. Sh. Rakesh Kumar. Kh. Under SI (D)/II/UMB. 3. Sh. Ashok Kumar under SI/D/I/SRF

They  will  draw  Rs.260/-  per  month  in  grade 260-400  from  the  date  of  their  resumption. They will  not  confer  upon  them/any right  for future  promotion.   They  will  be  reverted  on arrival of selected candidates.

Note:-  This  has  approval  of  Sr.  DSTE, New Delhi Sd/- for  Senior  Divisional  Personnel  Officer, New Delhi.”

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6. Those clerks appointed on officiating basis  in an ad hoc manner

made representations before the General Manager, Northern Railways for

their promotion on regular basis.  On or about 8.5.1987, a decision was

taken  that  services  of  those  who  had  completed  three  years’  ad  hoc

appointment may be regularized on the basis of service record and viva-

voce test as a one time dispensation and it was treated as a special case

and  not  to  be  treated  as  a  precedent.   As  the  respondents  had  not

completed  three years’  ad hoc  service at  the  relevant  time, their  cases

were  not  considered.   Another  representation  was  made  by  them  on

4.4.1990 on the premise that at that time they had completed three years

of ad hoc service.  The said representation was rejected.   

An  Original  Application  was  filed  by  them  before  the  Central

Administrative Tribunal (for short “Tribunal”) praying for issuance of a

direction upon the appellant to regularize their services as MCC and to

give the benefit of continuous ad hoc officiation towards seniority from

the date they had been working as MCC and promote them further to the

post of UDC from the date they became eligible therefor.  It is stated that

the employees of Ambala Division had also been given the benefit of the

said concession.   

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7. Indisputably,  respondents  took  part  in  the  selection  process  for

appointment in the post of MCC although they had completed more than

three years of service. Viva-voce test  was conducted. They were, thus,

considered for appointment.  Out of the employees who had appeared in

the  said  viva-voce  test,  12  persons  became  successful.   On  or  about

24.10.1997, a provisional panel was prepared wherein their names were

included.   The  services  of  the  said  12  successful  employees  were

regularized with immediate effect.  Their services were later on directed

to be regularized retrospectively with effect from 10.8.1988.   

8. By reason of a judgment and order dated 11.2.2000, the Tribunal

allowed the Original  Application filed by the respondents  opining that

despite the fact that ad hoc appointments were de hors the recruitment

rules but in view of the purported policy decision taken by the appellant

herein, their services were required to be regularized, stating:

“9. As  is  evident  from  the  principle  cited verbatim  above,  as  laid  down  by  the  Apex Court, even if the initial officiating appointment was de hors the recruitment rules in the wake of regularization of such appointments,  the entire period  of  the  officiating  service  becomes eligible  for  other  service  benefits,  like  the fixation  of  seniority  and  pay.   Though  the

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learned  counsel  for  the  respondents  has strenuously  sought  to  draw  a  distinction between ad hoc appointments on the one hand and the officiating appointments on the other, he has failed to produce any material based on the provision  of  either  the  Indian  Railway Establishment  Manual  or  the  rules  of appointments  applicable  generally  to  different Departments of the Government of India that for the purpose  of  reckoning the  service  rendered by an employee such a distinction does, indeed, exist  or  is  recognized by those provisions.   A mere recourse to the dictionary meaning of an officiating  appointment,  which,  were nevertheless not, merely says that it amounts to discharging  the  official  duties  of  a  post,  does not come to the help of the respondents in any meaningful  manner.   It  is  not  denied  by  the respondents  that  the  applicants  had,  indeed, been  discharging  all  the  duties  normally attached to the posts of MCCs.  In that view of the  matter  we  fail  to  understand  how  in  this context  officiating  appointments  as  MCCs would  have  been  different  from  an  ad  hoc appointment as MCCs.  

10. For the reasons discussed by us at some length above, we are unable to agree with  the contentions urged on behalf of the respondents that the applicants are not eligible for counting the ad hoc period of their service between 1986 and  1988  for  the  purpose  of  normal  service benefits like seniority, fixation of pay etc.”

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9. Appellant challenged the aforesaid decision by filing writ petitions

before the High Court, which by reason of the impugned judgment, have

been dismissed.

10. Mr.  Qadri,  learned counsel  appearing  on behalf  of  the appellant

would urge:

i. The impugned judgment of the High Court cannot be

sustained insofar as it failed to take into consideration

the financial implication in directing regularization of

services  of  the  respondents  on  completion  of  three

years’ from their respective dates of officiation.

ii. Such  an  order  would  affect  the  seniority  of  other

employees who having not been impleaded as parties,

the seniority issue could not have been determined.   

iii. There are also other employees who had been selected

later on and may claim seniority on the said basis.  

iv. Respondents  having  been  appointed  on  an  ad  hoc

basis  without  any  right  whatsoever,  their  services

could not have been directed to be regularized.   

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11. Mr.  D.R.  Sharma,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would contend that having regard to the

fact  that  some employees  of  Ambala  Division  had  been  given  similar

benefits  and  keeping  in  view  the  fact  that  the  respondents  had  been

working  since  1987,  this  Court  may  not  exercise  its  discretionary

jurisdiction under Article 136 of the Constitution of India.  

Drawing our attention to a decision of this Court in  T. Vijayan &

ors. vs.  Divisional Railway Manager & ors. [(2000) 4 SCC 20], it  was

urged that  as grant  of ad hoc promotion is  permissible in terms of the

Rule 216 of IREM, the High Court was within its jurisdiction to pass the

impugned judgment.   

12. Before adverting to the rival  contentions  raised hereinbefore,  we

may notice the relevant Rules:

"213.  Promotion.--  (a) A Railway servant  may be promoted to fill any post whether a selection post  or  a  non-selection  post  only  if  he  is considered fit to perform the duties attached to the post. The General Manager or the Head of Department  or  Divisional  Railway  Manager may  prescribe  the  passing  of  specified departmental  or  other  test  as  conditions precedent to a Railway servant being considered fit to hold specified post; such rules should be

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published  for  the  information  of  the  staff concerned.

(b) Unless specifically provided otherwise, the promotion shall be made without any regard for communal or racial consideration."

"214.  (a) Non-selection posts will  be filled by promotion of the senior  most suitable Railway servant.  Suitability  whether  an  individual  or  a group of Railway Servants being determined by the authority competent to fill the posts on the basis  of  the  record  of  service  and/or departmental  tests  if  necessary.  A  senior Railway  servant  may  be  passed  over,  only  if he/she has been declared unfit  for holding the post  in  question.  A  declaration  of  unfitness should  ordinarily  have  been  made  sometime previous to the time when the promotion of the Railway servant is being considered.

(b) When, in filing of a non-selection post, a senior  Railway  servant  is  passed  over  the authority  making  the  promotion  shall  record briefly the reason for such supersession.

(c) In respect  of promotion to non-selection post,  the  following  principles  should  be followed:-

(i) Staff in the immediate lower grade with a minimum of 2 years service in that grade will only be eligible for promotion. The  service  for  this  purpose  includes service,  if any rendered on ad hoc posts followed  by  regular  service  without

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break. The condition of two years service should stand fulfilled at the time of actual promotion and not necessarily at the stage of consideration.  

(ii) The number of eligible staff called for consideration  should be equal  to the number  of  existing  vacancies  plus  those anticipated  during  the  next  four  months due  to  normal  wastage  (i.e. retirement/superannuation),  likely acceptance  of  request  for  voluntary retirement,  staff  approved  to  go  on deputation  to  other  units,  staff  already empanelled  for  the  ex-cadre  posts, creation  of  additional  posts  already sanctioned  by  the  competent  authority, and staff  likely to  go  out  on  transfer  to other Railways/Divisions.  

(iii) Where  non-selection  posts  are filled from different categories of staff, no hard and fast limits need be prescribed as to  the  number  of  the  candidates  to  be admitted from each eligible  category. In cases where posts are to be filled on the quota basis it should be ensured that each category is adequately represented within the  overall  number  of  candidates  called up Employees passing the suitability test should  only be placed  in  the  select  list. Employees  not  qualifying  in  the  test should  not  be  taken  merely to  make  up the quota fixed.  

(iv) An  employee  who  has  passed  a suitability test once need not be called for

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the test  again and should be eligible for promotion as and when vacancies arise.  

(v) A suitability test should be held at the interval which should not be less than six months. All the eligible candidates as per  their  seniority  including  those  who failed at the last test should be called. The period of six months is reckoned from the date of announcement of the result.  

(vi) If an employee fails in a suitability test  but  is  called  up  again,  a  suitability test, after a time lag of six months and he passes  the  same,  he  should  be  given preference over his junior who had passed the suitability test earlier than him but is still waiting to be promoted for want of a vacancy."  

xxx xxx xxx

216.A. Ad hoc promotion against selection and non-selection  posts.--  (i)  Ad  hoc  promotions should  be  avoided  as  far  as  possible  both  in selection  and  non-selection  posts,  and  where they are found inescapable and have to be made in  the  exigency  of  service,  they  should  be resorted to only sparingly and only for a short duration  of  3  to  4  months.  The  ad  hoc promotion should be ordered only from amongst the seniormost suitable staff. As a rule a junior should not be promoted ignoring his senior.

(ii) The  following  further  guidelines  should be  adhered  to  while  ordering  ad  hoc  pro- motions:

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(a) In  case  of  non-selection  posts which are filled on the basis of seniority cum suitability while there is no provision for  any  lengthy  waiting  list.  The processing  involved  being  not  unduly cumbersome or time consuming the post shall  be  filled  after  following  the prescribed procedure quickly. When these posts  are  to  be  filled  by  trade  test,  this should  be  conducted  systematically. Necessity  for  ad  hoc  promotion  is  thus obviated.

(b) In  regard  to  selection  posts,  it  is essential  that  all  the selection  should be conducted  regularly  as  per  extant instructions.  While  there  is  no objection to ad hoc promotions being made in leave vacancy  and  short  duration  vacancy,  ad hoc promotion against regular promotion should be made only after obtaining Chief Personnel  Officer's  approval.  Proposal sent to Chief Personnel Officer for ad hoc promotion against regular vacancy should indicate  detailed  justification  as  to  why regular selection could not be held. Chief Personnel  Officer  should keep record of having accorded approval to such ad hoc promotion and review the progress made in  filling  up  these  posts  by  selected persons  every  month.  Chief  Personnel Officer should also review selection to all posts  afresh,  whether  such  posts  are controlled either at the Divisional level or at extra Divisional level. He should also keep the record of the categories where he has  to  approve  ad  hoc  promotions  and these  records  should be available  to  the Board's Officer on their visit to Railways.

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(Board's  letter  No.  E(NG)  II/81/RC-1/1 dated 1.4.1981)

(c) Notification for ad hoc promotions against selection posts should specifically include  a  remark  to  the  effect  that  the person  concerned  has  not  been  selected for  promotion  and  that  his  temporary promotion gives him no right for regular promotion and that his promotion is to be treated as provisional. For the purpose of drawing  his  pay  which  should  not  be drawn  for  more  than  three  months without  General  Manager's  specific sanction.  The  General  Manager  should issue  provisional  sanction  for  periods exceeding six months at a time and these powers  should  be  exercised  by  the General  Managers/Additional  General Managers personally or by his senior Dy. General Manager.

(Board's letter No. E(NG) 1-73-PM-1/222 dated 23.2.1974;  

E-55/PM-1/19/3 dated 11.1.1955;  

E(NG) 1-79-PM 1-105 dated 26.4.79 & E (NG)l-77-PM 1-117 dated 17.10.77)

(iii) In any case no second ad hoc promotion shall be allowed.

(Board's  letter No. E(NG) 1-85/PM/5-III dated 23.8.1985)

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xxx xxx xxx

"302.  Seniority  in  initial  recruitment  grades.-- Unless  specifically  stated  otherwise,  the seniority among the incumbents of a post in a grade is governed by the date of appointment to the  grade.  The  grant  of  pay  higher  than  the initial  pay  should  not,  as  a  rule,  confer  on  a railway servant  seniority  above those  who are already  appointed  against  regular  posts.  In categories  of  posts  partially  filled  by  direct recruitment  and  partially  by  promotion,  the criterion  for  determination  of  seniority  should be  the  date  of  regular  promotion  after  due process in the case of promotees and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter-se  seniority  of  promotees  and  direct recruits  among themselves.  When the dates  of entry into a grade of promoted railway servants and direct recruits are the same they should be put  in  alternate  positions  the  promotes  being senior to the direct recruits, maintaining inter-se seniority of each group.

Note.-  In  case  the  training  period  of  a  direct recruit is curtailed in the exigencies of service, the date of joining the working post in case of such a direct recruit shall be the date he would have  normally  come  to  a  working  post  after completion of the prescribed period of training."

13. A  policy  decision  taken  by  the  authorities  of  the  Railway  to

regularize the services of those MCCs who had been appointed on ad hoc

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basis was a one time measure.  It was not to be followed as a precedent.

It was, therefore, not necessary to follow subsequently.

14. Indisputably,  Rule  216  provides  for  ad  hoc  promotion  against

selection and non-selection posts.   

In T. Vijayan (supra), this Court opined:

“18. The  above  para  indicates  that  ad  hoc promotion  is  permissible  pending  regular selection. Once ad hoc promotion is found to be permissible under the Rules and Respondents 4 to  143 were  promoted on ad  hoc  basis  in  the exigencies of service, pending regular selection, which,  incidentally,  took  sufficient  time  as Respondents 4 to 143 who were on official duty “online” were not  available  at  one  point  or  at one  time  to  facilitate  the  selection,  the  entire period of ad hoc service will have to be counted towards  their  seniority,  particularly  as  all  the respondents  (4 to 143) were duly selected and their services were also regularised with effect from 16-12-1991 by order dated 18-1-1992. The employees concerned, including Respondents 4 to 143 had already been alerted for the process of selection which had been started in 1988 (sic 1987). While making direct recruitment against posts  which  were  advertised  in  1985,  it  was given  out  to  the  present  appellants  that  their absorption and seniority was subject, inter alia, to the finalisation of the selection to the post of First  Fireman  which  was  in  progress.  The appellants,  as  stated  earlier,  were  selected  in 1988  and  were  put  on  two  years’  training  as Apprentices whereafter  they were absorbed by order dated 18-7-1990 and were issued separate and individual  appointment letters  in which, it was  clearly  mentioned that  their  seniority was

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subject  to  the  finalisation  of  the  selection  for promotion  to  the  post  of  First  Fireman  which was  in  progress.  The  appellants,  in  this situation,  cannot  claim  seniority  over Respondents  4  to  143  who  had  already  been appointed  to  the  posts  of  First  Firemen on ad hoc  basis  and  were  after  due  selection regularised on those posts.”

Apart from the fact that in  T. Vijayan (supra), the effect of Rule

302 of the Rules had not been taken into consideration, the question as to

whether the seniority of the employees could have been reckoned only on

the basis of their date of initial appointment irrespective of the fact as to

whether in doing so the mandatory procedure laid down in the rules have

been followed or not, had not been taken into consideration.  It proceeded

on the premise that as IREM permits ad hoc promotion, the date on and

from which the employee concerned was promoted on an ad hoc basis

would  be  relevant.   It  was  decided  keeping  in  view  the  peculiar  fact

situation obtaining therein.   Respondents  therein were promoted on ad

hoc basis  in  a situation  where regular  promotion was not  immediately

possible.   There  was  a huge time gap.   A question  as  to  whether  the

respondents therein were entitled to the benefit of ad hoc service rendered

by them for the purpose of reckoning their seniority fell for consideration

in  the  aforementioned  situation.  The direct  recruits  were appointed  on

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probation  in  1988  and  were  put  to  two  years’  training  as  Apprentice

whereafter only they were absorbed in the service of the Railways with

effect  from  18.7.1990  subject  to  the  finalization  of  the  selection  for

promotion.  It is in the aforementioned situation, the question of inter se

seniority  between  the  direct  recruits  and  the  promotees  came  up  for

consideration.  

Even  otherwise,  the  decision  in  T.  Vijayan (supra)  has  no

application to the fact of the present case.  We have noticed hereinbefore

that the question in regard to inter se seniority amongst the promotees on

the one hand and the direct recruits on the other, are governed by Rule

302 of the Rules.  It is now a well settled principle of law and in respect

whereof there is absolutely no quarrel that in view of the decision of this

Court in Direct Recruit Class-II Engineering Officers’ Association & ors.

vs.  State  of  Maharashtra  &  ors.[(1990)  2  SCC  715]  an  employee

appointed to a post according to rule would be entitled to get his seniority

reckoned from the date of his appointment and not from the date of his

confirmation.   It  is,  however,  also  well  settled  that  where  the  initial

appointment is only ad hoc, not according to rules and made a stop-gap

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arrangement, the period of officiation in such post cannot be taken into

account for considering the seniority.

Rule  216  of  IREM in  no  uncertain  terms provides  that  such  an

appointment  should  be  made  for  short  duration  vacancy  only.   Such

orders  of  promotion  are  required  to  be  made only  upon  obtaining  the

approval of Chief Personnel Officer.  In the instant case, such an approval

was not obtained.  Approval was obtained only at the Divisional level.

Even while extending the period of three months, the circular letter of the

Board dated 23.2.1974 laying down for sanction of the General Manager,

therefore, had not been complied with.   

When an ad hoc appointment is made, the same must be done in

terms of the rules for all  purposes.  If the mandatory provisions of the

rules had not been complied with, in terms of Direct Recruit (supra), the

period shall not be taken into consideration for the purpose of reckoning

seniority.  Furthermore, it is one thing to say that an appointment is made

on an ad hoc basis but it  is  another thing to say that inter  se seniority

would be determined on the basis laid down in another rule.  

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This  aspect  of  the  matter  has  been  considered  by this  Court  in

Swapan Kumar Pal & ors.  vs.  Samitabhar Chakraborty& ors.  [(2001) 5

SCC 581], wherein this Court keeping in view the provisions of IREM

held as under:

“…The next case relied upon by Mr Rao is the case of Suraj Parkash Gupta v. State of J&K. In the  aforesaid  case,  on  consideration  of  the relevant  rules governing the service conditions of  the  Assistant  Engineers  of  the  Jammu and Kashmir  Government,  the  Court  had  observed that  ad  hoc  or  temporary service  of  a  person, appointed by transfer as an Assistant Engineer or  by  promotion  as  an  Assistant  Executive Engineer can be regularised through the Public Service  Commission  and  Departmental Promotion Committee from an anterior date in a clear vacancy in his quota, if he is eligible and found suitable for such transfer or promotion, as the  case  may be,  and  his  seniority  will  count from that  date.  The  aforesaid  conclusion  was drawn because of the provisions of Rule 23 and Rule 15 of the Jammu and Kashmir Rules but in the case in hand,  there  is  no provision,  which has been brought to our notice, which enables the  appointing  authority  to  regularise  a promotion  from  an  anterior  date,  though  the suitability  test  is  held  at  a  later  date.  In  the absence of  any such provision in the Rules  in question, the ratio of the aforesaid decision, on interpretation of the relevant rules of the Jammu and  Kashmir  Engineering  Rules  will  have  no application. In the aforesaid premises, we have no hesitation in coming to the conclusion that merely because  a  suitability  test  had not  been held at regular intervals an employee promoted on  ad hoc  basis  can  claim that  it  is  a  regular promotion  after  due  process  of  selection.  As such the seniority of promotees in the cadre of

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Senior Clerk can be counted only from the date of  regular  promotion,  after  due  process  of selection.”

In State of W.B. & ors. vs. Aghore Nath Dey & ors. (1993) 3 SCC

371, this Court held:-

“20. The Constitution bench having dealt with  Narendra Chadha in this manner, to indicate the above  principle,  that  decision  can  not  be construed  to  apply  to  cases  where  the  initial appointment was not according to rules.

21. We shall now deal with conclusions (A) and  (B)  of  the  Constitution  bench  in  the Maharashtra Engineers' case quoted above.

22.  There  can  be  no  doubt  that  these  two conclusions have to be read harmoniously, and conclusion  (B)  cannot  cover  cases  which  are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not  according to the date of confirmation, the  incumbent  of  the  post  has  to  be  initially appointed 'according to rules'. The corollary set out  in  conclusion  (A), then is,  that  'where the initial  appointment  is  only  ad  hoc  and  not according  to  rules  and  made  as  a  stop-gap arrangement,  the  officiation  in  such  posts cannot be taken into account for considering the seniority.' Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial  appointment  is  only ad hoc and not according to rules, being made only as a stop-

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gap  arrangement.  The  case  of  the  writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.

23.  This  being  the  obvious  inference  from conclusion  (A),  the  question  is  whether  the present case can also fall within conclusion (B) which  deals  with  cases  in  which  period  of officiating service will be counted for seniority. We have no doubt that conclusion (B) can not include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.

24.  The question,  therefore,  is  of  the  category which  would  be  covered  by  conclusion  (B) excluding  therefrom the  cases  covered  by  the corollary in conclusion (A).

25.  In  our  opinion,  the  conclusion  (B)  was added  to  cover  a  different  kind  of  situation, wherein the appointments are otherwise regular, except  for the deficiency of  certain procedural requirements  laid  down  by  the  rules.  This  is clear from the opening words of the conclusion (B),  namely,  'if  the  initial  appointment  is  not made by following the procedure laid down by the  rules'  and  the  later  expression  'till  the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a  fixed  period  of  time  or  purpose  by  the appointment order itself, and is made subject to

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the  deficiency  in  the  procedural  requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time  of  regularisation,  the  appointee  being eligible  and  qualified  in  every  manner  for  a regular  appointment  on  the  date  of  initial appointment in such cases.”

{See  also  M.K.  Shanmugam & anr.  vs.  Union  of  India  &  ors.

[(2000) 4 SCC 476}

This Court in  R.K. Mobisana Singh  vs.  Kh. Temba Singh & ors.

[(2008) 1 SCC 747] following the principles laid down by this Court in

Direct Recruit (supra) as also Swapan Kumar Pal (supra) held as under:

“39. Applying  the  principles  of  the aforementioned  decisions  to  the  facts  of  this case,  we  are  of  the  opinion  that  although  in terms  of  the  office  memorandum,  no retrospective effect could be given to the order of  regularisation  passed  in  favour  of  the promotees, as in absence of any seniority rules operating in the field, the State was required to evolve a policy. It for its own reason did not do so.

40. The  office  memorandum  of  1959  was applicable in a case of this nature. In some of the  cases,  promotion  might  have  been  given without following the rules. When promotion is given only in the exigency of situation without following  the  Rules,  the  period  cannot  be counted towards seniority.

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41. If they had been given regularisation with retrospective effect, the same by itself may not be a ground to apply the said order ipso facto for determining the inter se seniority. Seniority although is not a fundamental right but a civil right.  Such a right  of  the direct  recruits  could not have been taken away without affording an opportunity of hearing to them.

42. It  was  obligatory  on  the  part  of  the official  respondents  to  take  into  consideration that  the  retrospective  regularization  could  be granted  only when there  exists  such  a rule.  If rules were not followed at the time of grant of promotion,  question  of  grant  of  regularization with  retrospective  effect  would  not  arise. Retrospective regularization whether in terms of the directions of the  High Court  or  otherwise, thus,  although  could  confer  other  service benefits to the officer concerned, but the same cannot  be  held  to  be  of  any  assistance  for reckoning seniority with retrospective effect.”

15. We,  therefore,  are  of  the  opinion  that  the  Tribunal  and

consequently the High Court committed a serious error insofar it failed to

take into consideration the binding authorities of this court.   

While saying so, we are, however, not oblivious of the fact that in a

short judgment in Raj Kishore Vishwakarma & ors. vs. Union of India &

ors. [(1997) 11 SCC 619], this Court held:

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“4. Mr.  Vikram  Mahajan,  learned  counsel appearing  for  the  Railways,  has  very  fairly stated  that  the  appellants  were  appointed  in relaxation of the Rules in exercise of the powers under Rule 113.  He has taken us through the counter filed before the Tribunal and also before this  Court  wherein  it  is  clearly  stated  that  the appellants  were appointed  in  relaxation  of  the Rules.  We are of the view that the appellants having been appointed in relaxation of the Rules their appointments have to be treated under the Rules.   When  the  appellants  were  appointed under the Rules even the ad hoc period, which is continuous,  has  to  be taken into  consideration for  the purpose  of  fixation  of  seniority  in  the cadre of Typists.”

16. However,  the  factual  matrix  obtaining  in  the  said  case  was

absolutely  different.   In  that  case  power  of  relaxation  was  invoked.

Herein we are not concerned with any power of relaxation.   

In any view of the matter, it is now well settled that even power of

relaxation even specifically provided in the appointing authority himself

being created a statute cannot be exercised in an arbitrary and cavalier

fashion.

In Kendriya Vidyalaya Sangathan and Ors. v. Sajal Kumar Roy and

Ors. [(2006) 8 SCC 671], this Court held:

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“11...The appointing authorities are required to apply  their  mind  while  exercising  their discretionary jurisdiction to relax the age limits. Discretion  of  the  authorities  is  required  to  be exercised  only  for  deserving  candidates  and upon  recommendations  of  the  Appointing Committee/  Selection  Committee.  The requirements to comply with the rules, it is trite, were  required  to  be  complied  with  fairly  and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As Respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court  committed  a manifest  error  in issuing the aforementioned directions.”

17. For the reasons aforementioned, the impugned judgment cannot be

sustained, it is set aside accordingly.  The appeal is allowed.  However, in

the facts and circumstances of the case, there shall be no order as to costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J.     [Dr. Mukundakam Sharma]

New Delhi; FEBRUARY 12, 2009

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