REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7903   OF 2010

[Arising out of S.L.P.(C)No.16355 of 2007]

Ch. Narayana Rao  ....Appellant   

Versus Union of India & Ors.  ....Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted. 2. The continual riven for seniority with regard to     ad-hoc  

service rendered by the Appellant from the year 1981 till  his regularisation in the year 1992 is required to  be  adjudicated in this Appeal by this Court. Further, we are  called  upon  to  consider  whether  the  Appellant  can  be  treated as Regular Stenographer (OG – Ordinary Grade) from  the year 1981 itself.  

3. This appeal arises from the judgment and order dated  19.02.2007  passed  by  Division  Bench  of  the  High  Court  of  Judicature,  Chhattisgarh  at  Bilaspur,  in  Appellant's  Writ  Petition No. 388  of  2002,  wherein and  whereunder  he  had

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 2 - challenged the order of the Central Administrative Tribunal,  Principal Bench,  Delhi, (hereinafter shall be referred to as  'Tribunal') passed in O.A. No. 413 of 1999 dated 02.07.2001.  By  the  order  of  the  Tribunal,  the  Appellant's  Original  Application filed by him claiming seniority for the period he  had  worked  on  ad-hoc  basis  till  his  regularisation  was  rejected. The order of the Tribunal has been affirmed by the  Division  Bench  of  the  High  Court  by  dismissing  the  Appellant's Writ Petition vide the impugned judgment. Hence,  this appeal. 4. Factual matrix of the case lies in narrow compass:-  Appellant was appointed on 26.11.1981 on the post of  Stenographer (OG). His appointment was against a temporary  vacancy of stenographer, with the following rider:  

“His appointment is purely on an ad-hoc and  temporary  basis  and  his  services  may  be  terminated  any  time  without  assigning  any  reasons.”

5. Thus,  his  letter  of  appointment  clearly  stipulated that it was not only ad-hoc but temporary too,  terminable  at  any  time  without  assigning  any  reasons.  However, he continued in service, but after few years, an  apprehension arose in the mind of the Appellant and other  similarly situated stenographers  that  their  services may

be terminated. Thus,  C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 3 - the  Appellant  and  others  were  constrained  to  approach  the  Jabalpur  Bench  of  the  Tribunal  by  filing  Original  Application, claiming that the Respondent be restrained from  terminating their services and they be regularised. Tribunal  vide its order dated 23.10.1989 directed that the services of  the Appellant and other similarly situated stenographers, be  not  terminated,  instead  they  be  regularised  subject  to  qualifying requisite test. The operative part of the order of  the Tribunal is reproduced hereinbelow:-  

“The  Government  may  examine  and  review  the  position  as  whether  it  is  possible  to  regularize the services of these petitioners  by  relaxing  the  rule  requiring  their  recruitment  through  the  Staff  Selection  Commission. If it is not considered feasible  by  the  Government,  then  we  direct  that  the  petitioners should be continued in service and  the  respondents  are  restrained  from  terminating  their  services  but  two  opportunities be given to the petitioners to  attain  proficiency  in  Stenography  and  clear  the test with the requisite standard of speed  in shorthand etc. before their regularisation.  In  other  words  their  appointments  as  stenographers will be treated as officiating  appointment  although  not  confirmed  but  also  not ad-hoc pending such a regularisation.”  

 6. It is clear from a reading of the aforesaid direction  that  the  Respondents  were  restrained  from  terminating  the  services of the Appellant and two opportunities were directed

to  be  given   to  the   Appellant  to  clear  proficiency  test  so  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 4 - that he becomes entitled for regularisation. On the strength  of  the  said  order  of  Tribunal,  his  services  were  not  terminated  and  he  continued  in  employment  with  the  Respondents. 7. He,  thereafter,  qualified  the  proficiency  test  in  Stenography conducted by the Staff Selection Commission in  1992. Thus, he was regularised with effect from 12.04.1992,  the date on which he was declared successful in the test. 50%  of his past service was also ordered to be counted for the  purpose of computation of pensionary benefits.  8. Aggrieved, Appellant submitted his representation with  the Chief Commissioner of Income Tax, Bhopal on 06.08.1993  praying for regularisation of service from the date of his  initial appointment and treating his full ad-hoc service as  qualifying service for the purpose of pensionary benefits.  Since,  no  fruitful  results  came  forth  on  the  Appellant's  representation,  he  along  with  another  employee,  similarly  situated, was constrained to file another O.A. No. 413 of  1999  before  the  Principal  Bench  of  the  Tribunal  at  Delhi  which came to be allowed on 11.10.1999. It appears that while  the  said  O.A.  was  heard,  the  counsel  for  Respondents  had

remained absent. Thus, the order came to be passed ex-parte. 9. The  Department, therefore,  filed  M.A. No. 593  of  2000  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 5 - in the aforesaid O.A. before the same bench of the Tribunal  praying for the grant of opportunity to them to contest the  proceedings and for recall of the order dated 11.10.1999. The  said M.A. was allowed by the Tribunal on 04.01.2001 and the  parties  were  directed  to  appear  before  the  Tribunal  on  07.03.2001  for  re-hearing  of  the  Appellant's  Original  Application. That is how the matter was heard again by the  Tribunal.  The  Tribunal  passed  its  order  on  02.07.2001,  dismissing the Appellant's Original Application. It was this  order of the Tribunal which was challenged by the Appellant  before the Division Bench of the High Court by filing a Writ  Petition, but that too met with the fate of dismissal.  10. The  contention  of  the  respondents  from  the  very  beginning had been that the Appellant was one among several  persons who were appointed as stenographers (OG) on purely  temporary and ad-hoc basis. However, they were given their  regular appointment as stenographers (OG) in the department  only  from  the  date  of  passing  the  qualifying  test  with  approval by the Staff Selection Commission. All those who had  been  appointed  alongwith  Appellant  were  treated  alike  and

were given their regular appointment only from the date of  their  passing  the  requisite  test.  Thus,  no  case  of  discrimination  was made  out by  the Appellant as likes were  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 6 - treated alike. 11. They have also contended that the observations made by  Jabalpur Bench of the Tribunal in the Appellant's first O.A.,  could at best be treated as obiter as the question before the  Bench was only with regard to grant of injunction in favour  of  the  Appellant  so  that  the  services  could  not  be  terminated.  Thus,  any  observations  made  by  the  said  Bench  would not have a binding effect. Even otherwise, it has been  contended  that  the  first  order  of  the  Tribunal  clearly  stipulated that at the first instance the Respondents were  restrained from terminating the services of the Appellant and  the Appellant was given opportunity to appear in the test  twice to qualify for the appointment on regular basis. It has  also been contended that passing of the requisite examination  was condition precedent for appointment on regular basis as  per  the  Income  Tax  Department  (Group  C  Recruitment  Rules,  1990), to be approved by the Staff Selection Commission and  there could not have been any deviation therefrom. Unless the  Appellant had successfully cleared the said test he could not  have been granted the benefits sought by him. As soon as he

cleared the said test, he was regularised from the date of  his passing the examination, that is on 12.04.1992. In other  words,  the  Respondents have  contended  that  the Appellant  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 7 - alone  cannot  be  extended  the  benefit  of  regularisation  of  counting  his  service  from  the  date  of  his  initial  appointment,  which  was  not  only  temporary  but  was  ad-hoc  also, as the same may amount to hostile discrimination with  other Stenographers who are similarly situated. They have,  therefore,  contended  that  the  Tribunal  and  the  High  Court  have taken a correct legal view of the matter, which calls  

for no interference and appeal deserves to be dismissed. 12. We have, accordingly, heard Mr. Sushil Kumar Jain and  Mr. Puneet Jain, advocates for the appellant and Mr. B.S.  Chahar, Senior Advocate with Mrs. B. Sunita Rao and Mr. Mohd.  Mannan for respondents at length and perused the records. 13. The said question, as has been projected above, should  not detain us long as the same has been considered in the  matter  of  Direct  Recruit  Class  II  Engineering  Officers'  Association Vs.  State of Maharashtra and Others reported in  (1990) 2 SCC 715 by a Constitution Bench of this Court. After  eloquent  discussion  with  regard  to  inter  se seniority  of  direct recruits and promotees, the same has been summed up in  para 47. The relevant portion of the said para applicable to

the facts of this Appeal is reproduced hereinbelow:-

“47. To sum up, we hold that:- (A)Once  an  incumbent is  appointed to a  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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post according to rule, his seniority has to be  counted from the date of his appointment and  not according to the date of his confirmation. The corollary of the above rule 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  post  cannot be taken into account for considering  the seniority.

(B) If the initial appointment is not made  by following the procedure laid down by the  rules but the appointee continues in the post  uninterruptedly till the regularisation of his  service  in  accordance  with  the  rules,  the  period  of  officiating  service  will  be  counted.”

14. On the strength of the aforesaid Constitution Bench  Judgment, Mr. Sushil Kumar Jain strenuously submitted before  us that clause (B) thereof should be invoked for the purpose  of grant of seniority to the Appellant. 15. We have minutely examined the same but are unable to  accept the said contention as according to us corollary of  clause (A) of para 47 of the aforesaid judgment would be  applicable  to  the  Appellant's  case.  It  cannot  be  disputed  that the initial appointment of the Appellant was only ad-hoc  and for a temporary period and was also not in accordance

with the Rules of 1990 as he did not appear in the requisite  test,  which  is conducted  by  Staff  Selection  Commission,  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 9 - before  his  appointment.  The  same  was  only  a  stop-gap  arrangement. Therefore, his officiation on such a post cannot  be taken into account for considering the seniority. Thus,  in our considered opinion neither clause (A) nor clause (B),  as  reproduced  hereinabove,  would  be  applicable  to  the  Appellant's case and he cannot draw any advantages therefrom.  On  the  other  hand,  he  would  be  squarely  covered  by  the  corollary appended to clause (A). 16. This  judgment  of  Constitution  Bench  in  Direct  Recruit's case  (supra)  has  been  followed  by  three  learned  Judges of this Court in the case of State of West Bengal and  others Vs.  Aghore Nath Dey and Others reported in (1993) 3  SCC 371, authored by most illustrious learned Judge of this  Court - Hon'ble Mr. Justice J.S. Verma (as he then was).  After  considering  the  scope  and  ratio  decidendi of  Direct  Recruit's case (supra), it has been held in paras 24 and 25  in lucid and concise words as under:-

“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). 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  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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made by following the procedure laid down by  the ‘rules’ and the latter 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  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. Decision about the nature of the  appointment, for determining whether it falls  in this category, has to be made on the basis  of the terms of the initial appointment itself  and the provisions in the rules. In such cases,  the deficiency in the procedural requirements  laid down by the rules has to be cured at the  first  available  opportunity,  without  any  default of the employee, and the appointee must  continue in the post uninterruptedly till the  regularisation  of  his  service,  in  accordance  with the rules. In such cases, the appointee is  not  to  blame  for  the  deficiency  in  the  procedural requirements under the rules at the  time  of  his  initial  appointment,  and  the  appointment not being limited to a fixed period  of  time  is  intended  to  be  a  regular  appointment,  subject  to  the  remaining  procedural  requirements  of  the  rules  being  fulfilled at the earliest. In such cases also,  if there be any delay in curing the defects on  account  of  any  fault  of  the  appointee,  the  appointee would not get the full benefit of the  earlier period on account of his default, the  benefit being confined only to the period for

which  he  is  not  to  blame.  This  category  of  cases is different from those covered by the  corollary in conclusion (A) which relates to  appointment only  on ad  hoc basis as a stopgap  

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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arrangement and not according to rules. It is,  therefore, not correct to say, that the present  cases can fall within the ambit of conclusion  (B), even though they are squarely covered by  the corollary in conclusion (A).”

17. According to us, corollary appended to clause (A) of  Direct Recruit's case (supra) and the aforesaid judgment in  Aghore Nath Dey's case squarely decide the issue.  18. Reliance has also been placed by Mr. Sushil Kumar Jain  on  yet  another  Constitution  Bench  Judgment  of  this  Court  reported  in  (2000)  8  SCC  25  titled  Rudra  Kumar  Sain  and  Others Vs.  Union  of  India  and  Ors.  to  distinguish  the  terminology used in the case of O.P. Singla and another etc.  Vs.  Union of India and Others reported in (1984) 4 SCC 450  namely,  “Ad-hoc”,  “fortuitous”  and  “stop-gap”.  However,  we  are not required to consider the same as it has already been  dealt with in Aghore Nath's case (supra) elaborately. 19. In Singla's case (supra), the question was with regard  to  seniority  and  promotion  amongst  direct  recruits  and  promotees. The said question is not directly in issue in this  case. To the same effect is yet another earlier judgment of  this Court is reported in (1986) 2 SCC 157 titled  Narender

Chadha and Others Vs. Union of India and Others, which also  dealt only with the aforesaid requirement.

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 12 - 20. In Narender Chadha's Case, benefit was directed to be  granted to those Appellants as they were working on the said  posts for more than 15 to 20 years, which is not the case in  the  present  appeal.  Apart  from  the  above,  admittedly  the  Appellant  had  not  cleared  the  requisite  examination/proficiency test as required under the Rules of  1990, as soon as he cleared the examination/proficiency test,  he was regularised on the post. His regularisation from the  date of initial appointment was impermissible and was rightly  denied to him. 21. The view which has been taken by us hereinabove finds  favour  from  a  recent  judgment  of  this  Court  reported  in  (2009) 4 SCC 170 titled, Union of India Vs. Dharam Pal & Ors.  Perusal of the said judgment shows that the cases on which we  have  placed  reliance  have  also  been  fully  relied  upon  by  learned two Judges of this Court while dealing with the said  case.  Succinctly, it has been held in paragraph 25 and 27 as  under :

“25. It is, however, also well settled that  where the initial appointment is only ad-hoc,

not according to rules and made as a stop-gap  arrangement, the period of officiation in such  post  cannot  be  taken  into  account  for  considering the seniority. 26. .... .... .... ....

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

- 13 - 27. 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 Class II Engineering Officers'  Association  Vs.  State  of  Maharashtra  &  Ors.  (1990) 2 SCC 715, 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.”

22. We are, therefore, fortified in our reasoning as adopted  in the aforesaid Appeal. 23. Thus, looking to the matter from all angles, we are of the  considered view that no relief can be granted to the Appellant.  His seniority has been correctly worked out only from the date he  had passed the Stenography Test as contemplated under the Rules  approved by Staff Selection Commission. 24. Thus, the appeal being devoid of any merit and substance  is hereby dismissed but with no order to costs.   

..................... .J.  [DALVEER BHANDARI]

     .............

.........J.           [DEEPAK VERMA]

New Delhi September 10, 2010