REPORTABLE THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4935 OF 2006

Ghanshyam Sharma & Ors. … Appellants

Vs.

State of Rajasthan & Ors. … Respondents

And

CIVIL APPEAL NO. 4936 OF 2006

Suresh Kumar Sharma  … Appellant

Vs.

State of Rajasthan & Ors. … Respondents

With

CIVIL APPEAL NOS. 4937/2006 and 4938/2006.

J U D G M E N T

R.V.RAVEENDRAN, J.

CIVIL APPEAL NOs, 4935/2006 and 4936/2006.

These appeals relate to the claim of the Lower Division Clerks/Upper  

Division Clerks, who were appointed as regular Stenographers (referred to

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as “special promotees”) on 25.4.1992, under proviso (5A) to Rule 5 of the  

Rajasthan Secretariat Ministerial Service Rules, 1970 (for short ‘the rules’),  

for  retrospective  appointment  from  1978-1979  and  the  consequential  

seniority dispute between them and the directly recruited stenographers. The  

appellants in CA 4935/2006 are the special promotees. The appellants in CA  

No.4936/2006 are the direct recruits.  

2. Rule 5 of the Rules related to method of recruitment and provided that  

recruitment to the service after the commencement of the rules shall be made  

by the following methods:-

“(a) direct recruitment as laid down in column No.3 of the  Schedule  I  in accordance with Part  IV of the  

Rules;

(b) promotion as laid down in column No.3 of the Schedule  I in accordance with Part V of the Rules.”  

Entry  (3)  in  Schedule  I  related  to  the  post  of  Stenographers.  The  third  

column of the said Entry showed the sources of recruitment with percentages  

as follows:  

“50%  by  direct  recruitment  and  50%  from  amongst  Lower  Division  Clerks  and  Upper  Division  Clerks  of  the  Rajasthan  Secretariat according to proviso (5) of Rule 5.”

Proviso (5) to Rule 5 (referred in Entry (3) of Schedule I) read as follows:  

“that recruitment to fill 50% of the vacancies of Stenographers in  a particular period of recruitment shall be made by selection from  amongst  such  of  the  Lower  Division  Clerks/Upper  Division

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Clerks  of  the  Secretariat  who  have  passed  the  qualifying  examination  prescribed  for  the  Stenographers  in  these  Rules  subject to availability of such persons;  

their selection shall, notwithstanding anything contained in Part  V of these Rules, be deemed to be promotion with effect from the  date  of their  selection.  If  in any year,  the requisite  number of  such candidates  is  not  available  the  remaining vacancies  shall  also  be  filled  by  direct  recruitment  through  competitive  examination according to the procedure laid down in Part IV.”

3. Proviso (5A) was introduced in the Rules by way of amendment to  

Rule 5, vide notification dated 15.3.1978 and read as follows:  

“(5A) that nothing in these Rules shall preclude the appointing  authority from making substantive appointment to the posts of  stenographer  subject  to  the  availability  of  the  vacancies  from  amongst the persons who were holding the post of stenographer  or  steno  typist  either  in  temporary  or  a  hoc  capacity  in  the  Rajasthan Secretariat on 5.5.1970 or 15.9.1972 and whose work  is found satisfactory by the appointing authority and who held  either of the following qualifications and experience on such date —

(a) Graduate from a University  established by Law in India  with Shorthand as one of the subject or holder of a diploma  in Shorthand; or

(b) Passed  the  Higher  Secondary  Examination  from  the  Rajasthan Board of Secondary Education or an equivalent  examination  with  Shorthand  as  one  of  the  subjects  and  must  have  put  in  two  years  service  as  Stenographer  or  Steno typist excluding breaks, if any; or

(c) Those Stenographers or Steno typists who have put in two  years’  service  as  such  on  15.9.1972  in  the  Rajasthan  Secretariat excluding breaks, if any and who are certified  by the Appointing Authority to have worked satisfactorily  and have also passed competitive examination mentioned

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in  Part  II  of  Schedule  II  either  in  English Shorthand or  Hindi Shorthand apart from passing the English and Hindi  typewriting tests. x x x”

By  Government  order  dated  19.6.1978  the  existing  Lower  Division  

Clerks/Upper Division Clerks who were working or required to work against  

the sanctioned post of Stenographers on purely ad-hoc basis were allowed  

special  pay  of  Rs.30  per  month,  provided  they  possessed  one  of  the  

following qualifications either in English or Hindi:  

“(i) pass  in  Higher  Secondary  Examination  or  degree  of  a  University established under law with Stenography as one of  the subjects.

(ii) pass in the examination in stenography held by the HCM  State Institute of Public Administration or Bhasha Vibhag.

(iii) a  diploma  in  stenography  from  Industrial  Training  Institute.  

(iv) completion of training organized by the Organization &  Method Department and also passing the test, if any, held by  the Organization & Method Department.”

The grant of special pay was further subject to the following conditions:-

“(i) The appointing authority certifies in the order sanctioning  special pay to the effect that Stenographer regularly recruited  through Rajasthan Public Service Commission is not available.

(ii) The special pay shall be granted to the lower division  clerk till a Stenographer recruited through Rajasthan  Public Service Commission is not made available in  the Department.”

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4. Proviso (5A) was amended several times postponing the cut off date.  

The said proviso as amended on 23.5.1979 reads as follows:  

“(5A) that nothing in these Rules shall preclude the appointing  authority from making substantive appointment to the post of  Stenographer or the steno-typist, as the case may be, subject to  the  availability  of  vacancies  from amongst  the  persons  who  were holding the post of Stenographer either in temporary or ad  hoc capacity in the Rajasthan Secretariat on or before 31.7.1977  and  whose  work  is  found  satisfactory  by  the  appointing  authority and who fulfilled either of the following qualifications  on such dates. x x x x”

Proviso (5A) was again amended on 23.1.1985 and the proviso as amended  

read as follows:  

“(5A) that nothing in these Rules shall preclude the appointing  authority from making substantive appointment to the post of  Stenographer or the steno-typist, as the case may be, subject to  the  availability  of  vacancies  from amongst  the  persons  who  were holding the post of Stenographer either in temporary or ad  hoc capacity in the Rajasthan Secretariat on or before 23.5.1979  and  whose  work  is  found  satisfactory  by  the  appointing  authority and who fulfilled either of the following qualifications  on such date. x x x x”

Proviso (5A) was thereafter amended on 18.9.1987, the amendment being  

deemed  to  have  been  made  with  effect  from  23.1.1985.  The  amended  

proviso (5A) read as under :  

“(5A) that nothing in these Rules shall preclude the appointing  authority  from making  substantive  appointment  to  the  post  of  Stenographer or the steno-typist, as the case may be, subject to

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the availability of vacancies from amongst the persons who were  holding the post of Stenographer either in temporary or ad hoc  capacity in the Rajasthan Secretariat on or before 23.5.1979 and  also continuously holding the post on 23.1.1985 and whose work  is  found  satisfactory  by  the  appointing  authority  and  who  fulfilled either of the following qualifications on such date. x x x  x”

5. Due  to  shortage  of  Stenographers  in  the  Secretariat  Service,  the  

special promotees, who were working as LDCs/UDCs, were appointed as  

Stenographers  on  ad hoc basis,  on  various  dates  between 17.3.1978 and  

5.5.1979, and were paid the special pay of Rs.30 per month from 19.6.1978  

onwards.  On 29.2.1980, Rajasthan Public Service Commission (‘RPSC’ for  

short) invited applications for 86 posts of stenographers. After conducting an  

examination,  RPSC  appointed  several  stenographers  by  way  of  direct  

recruitment.  The  special  promotees,  who  were  then  working  as  ad-hoc  

stenographers, applied in response to the said advertisement and participated  

in the examination, but were not successful and were not selected. As and  

when the directly recruited stenographers were given postings, the special  

promotees working as ad-hoc stenographers were reverted from the post of  

Stenographers to their substantive posts as LDCs/UDCs in the years 1981  

and 1982.

6. When proviso (5A) was amended on 23.1.1985 providing that persons  

who were holding the post  of Stenographer either in temporary or adhoc

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capacity in Rajasthan Secretariat on or before 23.5.1979 could be appointed  

on  substantive  basis,  the  special  promotees  (who  had  been  reverted  as  

LDCs/UDCs  in  1981-82)  expected  that  they  will  be  considered  for  

substantive appointment as Stenographers, as they fulfilled the requirements  

proviso (5A).  But when proviso (5A) was further  amended on 18.9.1987  

clarifying that only those who were working as Stenographers on or before  

23.5.1979 and who continued to hold the post as on 23.1.1985, were eligible  

for  consideration  under  proviso  (5A),  they  felt  that  their  “right”  to  be  

considered for appointment as Stenographers on substantive basis was taken  

away,  as  they were  not  working as  ad-hoc  stenographers  upto 23.1.1985  

though  they  were  holding  the  post  of  Stenographer  on  adhoc  basis  on  

23.5.1979.  Therefore  some  of  the  special  promotees  approached  the  

Rajasthan  High  Court  and  filed  WP  No.2116/1989  challenging  the  

amendment dated 18.9.1987 to proviso (5A) to Rule 5 of the Rules. The said  

writ petition was allowed by a Division Bench of the Rajasthan High Court  

on 7.8.1991 striking down the amendment dated 18.9.1987 to proviso (5A)  

as being unconstitutional.  As a consequence, the High Court directed the  

State  Government  to  consider  the  writ  petitioners  (promotees)  who were  

working as LDCs/UDCs for substantive appointment  as  Stenographers  in  

accordance with the Rules, as amended on 23.1.1985 and if as a result of  

such consideration, they were found suitable, they should be appointed as

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Stenographers with consequential benefits.  

7. In pursuance of the said order dated 7.8.1991, the State Government  

by order dated 25.4.1992 appointed 27 LDCs/UDCs (who were working as  

steno-typists as on 23.5.1979 on special pay of Rs.30 per month), to the post  

of steno-typists under proviso (5A) to Rule 5 as amended by notification  

dated 23.1.1985, with a note that separate orders will be issued in regard to  

their seniority and other benefits. By another order dated 25.7.1994, it was  

noted that two of appointees had opted to continue in their original position;  

and  that  the  remaining  25  candidates  appointed  on  25.4.1992  would  be  

considered as regularly appointed to the post of Stenographer with effect  

from 1.4.1985 and they will be entitled to notional fixation of salary from  

1.4.1985 to the date of taking over charge. It was further provided that the  

seniority of the said 25 employees shall be fixed in accordance with Rule 29  

of  the Rules and they shall  be placed below the persons selected by the  

RPSC in 1980 and above the persons selected by RPSC in the year 1985.  

This  was  followed by  another  order  dated  15.11.1995 making  22 of  the  

promotees (including the appellants in CA No. 4935/2006) permanent on the  

post of stenographers with effect from 1.4.1985.

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8. The  order  dated  15.11.1995  gave  rise  to  the  following  two  writ  

petitions:-

(i) Civil  Writ  petition  No.  2930/1995  by  the  22  special  promotees  

praying that their appointment to the post of Stenographers should be made  

from the respective dates of their initial appointment in the year 1978-1979  

against vacant posts as per proviso (5A) to Rule 5 (instead of 1.4.1985) and  

they  should  be  assigned  seniority  with  effect  from  such  dates  with  all  

consequential benefits;  

(ii)  Civil  Writ  Petition  No.  4663/1996  by  four  directly  recruited  

stenographers  (appellants  in  CA  No.4936/2006)  seeking  quashing  of  the  

notification  dated 23.1.1985 amending proviso (5A),  and the  order  dated  

15.11.1995 by which 22 special promotees were made permanent in the post  

of stenographers with effect from 1.4.1985. They also sought drawing up of  

a seniority list of the Stenographers afresh after placing them above those  

persons whose names were shown in the seniority list dated 15.11.1995.  

9. A learned Single Judge by order  dated 21.10.2002 allowed C.W.P.  

No. 2930/1995 filed by the special  promotees and dismissed C.W.P. No.  

4663/1996 filed by the direct recruits. He directed the State Government to  

implement the order dated 7.8.1991 in CWP No.2116/1989 and promote the  

clerks who were appointed in 1978 or 1979 temporarily or on ad-hoc basis,  

as Stenographers from the date of their initial appointment in 1978 and 1979  

against  vacant  substantive  posts  and  assign  seniority  to  them  as

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Stenographers from the respective dates of initial appointments in 1978 and  

1979.  

10. The  said  order  dated  21.10.2002  in  CWP  No.2930/1995  was  

challenged in following three special appeals:- (i) CSA  No.  1038/2002  by  

the four direct recruit stenographers;  (ii) CSA No. 79/2003 by the State of  

Rajasthan; and (iii) CSA No. 454/2003 by other direct recruits (Govind Ram  

Ailani and others). The four direct recruits (appellants in CA No.4936/2006)  

also filed CSA No. 1039/2002 against the dismissal of WP No.4663/1996.  

All these four appeals were disposed of by the impugned common judgment  

dated  19.1.2005 by  a  Division  Bench of  the  Rajasthan  High Court.  The  

division  bench  held  that  the  special  promotees  who  were  appointed  as  

Stenographers after 1.4.1985, that is in the year 1992 were not entitled to  

seniority from 1978 and 1979, as no vacancies were available after the direct  

recruitment  in  1981.  Therefore  the  division  bench  directed  the  State  

Government as follows:  (a) to assign seniority to the direct recruits from the  

respective dates of their appointment; (b) not to assign special promotees  

appointed as Stenographers in the year 1992 under proviso (5A), seniority  

prior to 1.4.1985; and (c) if any directly recruited stenographer was selected  

and  appointed  after  1.4.1985  will  be  junior  to  the  special  promotees  

appointed under proviso (5A) with effect from 1.4.1985.

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11. The said order of the division bench dated 19.1.2005 is challenged in  

these appeals as stated above.

11.1) Civil  Appeal  No.4935/2006  is  filed  by  the  special  promotees  

aggrieved by the finding that stenographers who have selected and appointed  

under proviso (5A) in 1992 could not be treated as having been appointed  

prior to 1.4.1985 and that they will be senior only to the direct recruits who  

were selected and appointed after 1.4.1985. The special promotees submitted  

that they were not claiming any monetary benefit on the basis of their  ad  

hoc service, but were only claiming that they were entitled to be appointed  

on  regular  basis  from  the  date  of  their  initial  ad  hoc or  temporary  

appointment having regard to proviso (5A) to Rule 5, as the object of the  

said  proviso  was  to  absorb  all  LDCs/UDCs  who  were  appointed  as  

stenographers  on  ad-hoc  basis  into  substantive  vacancies,  as  regular  

stenographers from the date they were appointed on ad hoc basis.  

11.2) Civil  Appeal No.4936/2006 is  filed by the four direct  recruits  who  

were selected in 1981, 1985 and 1989. They are aggrieved by the decision of  

the Division Bench that the special promotees are entitled to seniority with  

effect from 1.4.1985. They contend that the wording of proviso (5A) to Rule  

5 does not authorize or enable retrospective appointments; they contended  

that proviso (5A) did not provide for retrospective appointment; that the said  

proviso only enabled the appointing authority to appoint prospectively to  

existing vacant posts, persons who were working as Stenographers either on  

temporary or  ad hoc basis and whose services were satisfactory and who  

possessed the prescribed qualifications; and that as appointments were made

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on 25.4.1992 it could be effective only from 25.4.1992 and not from any  

earlier  date.  They contended that as all  of them were appointed as direct  

recruits prior to 1992, (that is in the years 1981, 1985 and 1989), they had to  

be treated as  senior to  the 22 special  promotees  who were  appointed on  

25.4.1992.

12. Therefore, the questions that arise for our consideration are :  

(i) Whether  the  special  promotees  who  were  appointed  on  24.5.1992  under proviso (5A) to Rule 5 in pursuance of the decision of the High Court  dated 7.8.1991  ought to have been appointed with retrospective effect from  the years 1978 and 1979 when they were appointed on  ad hoc basis with  special pay (as claimed by the promotees)?

Or

(ii) Whether  the appointment of special  promotees under proviso (5A),  could be only prospective from the date of their appointment (25.4.1992)  and not from any retrospective date, (as contended by the Direct Recruits) ?  

Or

(iii) Whether  the  orders  dated  15.11.1995  making  the  LDCs/UDCs  appointed  as  stenographers  on  25.4.1992  permanent  in  the  post  of  stenographers  with  effect  from  1.4.1985  is  valid  and  does  not  call  for  interference?  

13. The order dated 7.8.1991 in CWP No. 2116/1989 attained finality as  

challenge thereto was rejected by this Court on 9.12.1991. The issue decided  

by the High Court in order dated 7.8.1991 was that the amendment dated  

19.9.1987 to proviso (5A) adding the words “and also continuously holding  

the post on 23.1.1985” was invalid and consequently the said addition was

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quashed. Therefore we have to proceed on the basis that proviso (5A) should  

be read without the 1987 amendment, that is as follows:

“(5A) that nothing in these Rules shall preclude the appointing  authority from making substantive appointment to the post of  Stenographer or the steno-typist, as the case may be, subject to  the  availability  of  vacancies  from amongst  the  persons  who  were holding the post of Stenographer either in temporary or ad  hoc capacity in the Rajasthan Secretariat on or before 23.5.1979  and  whose  work  is  found  satisfactory  by  the  appointing  authority and who fulfilled either of the following qualifications  on such date. ……..”

Proviso (5A) gives a clear indication that it could be invoked only in  

regard to temporary or ad-hoc stenographers who were working as such on  

the  date  of  consideration under  the  said  proviso  in  addition  to  the  

requirement that they should have held such temporary or ad-hoc position on  

or  before  23.5.1979.  This  is  because  proviso  (5A)  uses  the  expression  

‘whose work is found satisfactory’ and not ‘whose work was found to be  

satisfactory’.  As the order dated 7.8.1991 of the High Court had attained  

finality,  we do not  propose  to disturb the  validity  of  appointment of  the  

special promotees under order dated 25.4.1992, even though their eligibility  

was doubtful as they had ceased to hold such temporary or ad-hoc position  

from 1981-82. Be that as it may.    

14. The order  of  the  High Court  dated 7.8.1991 was construed by the  

State  Government as  directing consideration of the special  promotees  for

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substantive  appointment  as  stenographers,  if  they  were  in  service  on  or  

before 23.5.1979 and their  work was satisfactory and they possessed the  

qualifications prescribed in that proviso.

15. The special promotees who were earlier working as LDCs and UDCs  

were assigned to work against sanctioned vacant posts of stenographers on  

ad hoc basis in the year 1978-79 to 1981-82 pending regular recruitment by  

granting them a special pay of Rs.30/-. When they were so required to work  

as stenographers on  ad hoc basis with special pay of Rs.30/- in the years  

1978 and 1979, proviso (5A) to Rule 5 was inapplicable to them, as at that  

time, proviso (5A) empowered the appointing authority to make substantive  

appointment to the post of stenographers against available vacancies, only  

from among those  who were  holding the  post  of  stenographers  either  in  

temporary  or  ad  hoc capacity  in  the  Rajasthan  Secretariat  on  or  before  

31.7.1977. As none of the 22 special promotees was holding the post of ad  

hoc stenographers  on  31.7.1977  and  all  were  appointed  as  ad-hoc  

stenographers  only  between  17.3.1978  and  5.5.1979,  they  could  not  be  

considered under proviso (5A) for appointment on regular basis.  As they  

were required to work as stenographers  purely on  ad hoc basis  from the  

years  1978  and  1979,  pending  regular  recruitment  and  the  regular  

recruitment was in fact done by the Public Service Commission in pursuance

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of advertisement dated 29.2.1980, they were all reverted from the post of ad-

hoc stenographers to their original positions as LDCs and UDCs in the years  

1981-82. As noticed above these 22 special promotees who were working as  

ad-hoc stenographers  in  1980,  applied  for  direct  recruitment  against  the  

advertisement  dated  29.2.1980,  but  none  of  them  was  successful  in  the  

examinations  and  consequently  were  not  appointed  against  the  direct  

recruitment  vacancies  filled by RPSC.  Significantly,  none of  the  said  22  

LDCs/UDCs working as ad-hoc stenographers who were reverted back as  

LDCs/UDCs  in  1981-82  challenged  their  reversion  and  their  reversion  

attained finality.  

16. Only when proviso (5A) to Rule 5 was further amended on 23.1.1985,  

by changing the cut off date as 23.5.1979 instead of 31.7.1977, the special  

promotees became eligible for being considered for substantive appointment  

to the post of stenographers under proviso (5A). But proviso (5A) did not  

create a right in those who were working as ad-hoc/temporary stenographers  

on or before 23.5.1979 for consideration and appointment. As noticed above,  

the appointment to the post of stenographers was 50% by direct recruitment  

and 50% by promotion from amongst LDCs and UDCs. Proviso (5A) merely  

enabled the appointing authority, if he so desired or found it necessary to  

make substantive appointment as stenographer, anyone who was working as

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ad  hoc/temporary  stenographer  in  the  Rajasthan  Secretariat  on  or  before  

23.5.1979,  subject  to  fulfillment  of  three  conditions  :  (i)  that  there  were  

vacancies  in  the  post  of  stenographers;  (ii)  that  the  appointing  authority  

found  that  the  work  of  such  temporary  or  ad  hoc stenographer  was  

satisfactory; and (iii) that the ad hoc/temporary stenographer possessed the  

required  qualifications  on  the  date  when  he  was  considered  for  such  

substantive appointment. Proviso (5A) starts with the words “that nothing in  

these rules shall  preclude the appointing authority for making substantive  

appointment to the post of stenographer”. This shows that proviso (5A) is  

purely  an  enabling  provision  which  gives  the  option  or  liberty  to  the  

appointment authority to fill any vacant post of stenographer by making a  

substantive appointment of a person who had worked as  ad-hoc/temporary  

stenographer  on  or  before  23.5.1979  and  possessed  the  prescribed  

qualification at the time of substantive appointment.  

17. When the Division Bench of the High Court by order dated 7.8.1991  

held that the amendment to proviso (5A) on 18.9.1987 was invalid, it only  

meant that the option or liberty became available to the appointing authority  

in  terms  of  the  said  proviso  as  it  stood  before  the  amendment  dated  

18.9.1987 and that the requirement added by the said amendment that the ad  

hoc/temporary  stenographer  should  also  be  continuously  working  till

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23.1.1985 was deleted. The said order dated 7.8.1991 of the High Court by  

no stretch of imagination could be construed as mandating the appointing  

authority  to  consider  all  LDCs  and  UDCs  who  were  working  as  ad  

hoc/temporary  stenographers  on  or  before  23.5.1979  for  being  regularly  

appointed as stenographers on substantive basis, even if they had ceased to  

hold  such  position  in  1981-82.  The  regular  appointments  by  way  of  

promotion from amongst LDCs and UDCs was to be made in the normal  

course as per proviso (5) and not under proviso (5A). Proviso (5A) gave an  

additional option to the appointing authority to fill any vacancy in the post  

of stenographers by making substantive appointment as special cases or to  

meet  unforeseen  contingencies  or  to  meet  urgent  requirements.  This  

obviously means that the power under proviso (5A) could only be exercised  

with reference to the current needs and requirements when the consideration  

under proviso (5A) takes place and not with any retrospective effect.  

18. Therefore, any appointment under proviso (5A) could be only by way  

of  current  appointment with prospective  effect.  The order  dated 7.8.1991  

could not be construed as directing otherwise. In the impugned order, the  

division bench of the High Court proceeded erroneously in assuming that the  

retrospective appointment of 22 LDCs/UDCs under proviso (5A) was valid  

if  it  was  with  effect  from  1.4.1985.  On  a  careful  consideration  of  the

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wording of proviso (5A), we are of the view that it does not contemplate or  

provide for or authorize retrospective appointment thereunder. Therefore, we  

accept  the  contention  of  the  direct  recruits,  reject  the  contention  of  the  

special promotees and set aside the decision of the Division Bench of the  

High Court insofar as it holds that the retrospective appointment could be  

made with effect from 1.4.1985.  

19. In view of the above, we dismiss Civil Appeal No.4935 of 2006 filed  

by  the  special  promotees  and  allow  Civil  Appeal  No.4936  of  2006  and  

declare that the appointment of the special promotees as stenographers on  

25.4.1992 was prospective with effect  from that  date and not with effect  

from any previous date (either in 1978-79 or from 1.4.1985). We direct the  

State Government to draw the revised seniority list accordingly.   

Re : Civil Appeal Nos. 4937 and 4938 of 2006.  

20. The appellant in CA No.4937 of  2006 was initially appointed as  an  

LDC.  By  order  dated  23.11.1972,  he  was  appointed  as  an  ad  hoc  

Stenographer in the Education Department. He was taken on transfer, on the  

post of Stenographer in the Secretariat, temporarily, continuing his lien on  

his post in the parent department, vide order  dated 7.3.1977 and he joined  

the Secretariat  on 23.3.1977. His appointment as Stenographer was made

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substantive with effect from 15.3.1978 in his parent (Education) department  

on 3.7.1979. By an order dated 19.10.1981 made under proviso (5A), his  

appointment  on  the  post  of  Stenographer  in  the  Secretariat  was  made  

substantive with effect from 23.5.1979.  

21. The appellants  in CA No.4938 of  2006 were initially appointed as  

LDCs. They were appointed as ad hoc  Stenographers on 4.4.1977, 4.4.1977  

and 11.4.1977. They were extended special  pay by order dated 7.7.1978.  

They were appointed as regular stenographers with effect from the date of  

their  initial  appointment  as  stenographers,  vide  order  dated  16.11.1981,  

under proviso (5A).  

22. One  Kripa  Shankar  Sharma  who  was  directly  recruited  as  a  

Stenographer in the Secretariat on 7.2.1981 and confirmed with effect from  

25.8.1983 filed a writ petition (CWP No.1433 of 1983) for the following  

reliefs :  

(a) The  notification  dated  23.5.1979  which  amended  proviso  (5A)  by  

substituting  the  date  31.7.1977  in  place  of  the  dates  5.5.1970  or  

15.9.1972 and the subsequent  notification dated 9.6.1983 by which  

the date 31.7.1977 was substituted as 14.3.1978 in proviso (5A) were  

invalid.  

(b) For a declaration that the order dated 16.11.1981 by which the State  

Government appointed the six persons (including appellants 1 to 3 in

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CA No.4938/2006) as stenographers on regular basis from the date on  

which they were initially performing the duties as stenographers on  

ad hoc basis and the subsequent show cause notice dated 15.12.1981  

proposing to confirm them in the post  of stenographers with effect  

from  23.5.1979  and  inviting  objections  to  the  said  proposal  from  

affected persons were invalid.  

(c) For  a  declaration  that  the  substantive  appointment  of  ad  

hoc/temporary stenographers under proviso (5A) was null  and void  

and  that  consequently  they  should  be  declared  as  ineligible  for  

appearing in the Personal Assistant examination.  

He contended that he was senior to the appellants in C.A. No.4938 of  

2006 as  their  appointments  as  stenographers  under  Proviso  (5A)  was  by  

order dated 16.11.1981, whereas he was directly appointed as stenographer  

on 7.2.1981. The said writ petition was dismissed by a learned single Judge,  

by  order  dated  30.11.1999.  The  special  appeal  filed  by  the  said  Kripa  

Shankar Sharma against the said decision of the learned Single Judge was  

allowed by a  Division Bench by the  impugned order  dated 17.5.2005 in  

terms of the order dated 19.1.2005 which is challenged by the stenographers  

appointed under proviso (5A) in Civil Appeal Nos.4937 and 4938 of 2006.  

23. The appellants in C.A. No.4938/2006 submitted that their cases were  

different from the cases of special promotees considered in CA Nos.4935 &

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4936/2006.  It  is  pointed  out  that  the  ad  hoc appointment  of  the  special  

promotees  in  1978-79  had  come to  an  end  in  1981-82  when  they  were  

reverted as LDCs/UDCs and they were not working as stenographers when  

they were appointed. On the other hand, the appellants in CA No.4938/2006  

were working as ad hoc stenos both on 23.5.1979 and on 16.11.1981 when  

the order under proviso (5A) was made. On careful consideration, we find  

that  the  said  distinction  has  no  relevance  to  the  issue  on  hand which  is  

whether  the  appointment  under  proviso  (5A)  could  be  with  retrospective  

effect.  As  seen  from  the  facts  narrated,  our  decision  in  Civil  Appeal  

Nos.4935 and 4936 of 2006 that the appointment under proviso (5A) could  

not be retrospective will apply to Civil Appeal No.4938 of 2006.  

24. The  position  of  the  appellant  in  Civil  Appeal  No.4937 of  2006 is  

however different. His appointment as stenographer was made substantive in  

his  parent  department  with  effect  from  15.3.1978.  By  order  dated  

19.10.1981, his appointment was made substantive in the Secretariat with  

effect from 23.5.1979, by which date he was a stenographer on substantive  

basis in his parent department. More importantly, the order dated 19.10.1981  

under proviso (5A), appointing him as stenographer on substantive basis in  

the  Secretariat  was  not  challenged  by Kripa  Shankar  Sharma in  his  writ  

petition  (WP  No.1433  of  1983).  He  challenged  only  the  order  dated

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16.11.1981 under proviso (5A) relating to the appellants in CA No.4938 of  

2006. Though Kripa Shankar Sharma had impleaded the appellant in Civil  

Appeal No.4937 of 2006 as the sixth respondent in his writ petition, as Kripa  

Shankar Sharma had failed to challenge the order dated 19.10.1981 under  

proviso (5A) made in his case, no relief could have been granted against the  

appellant in C.A.No.4937 of 2006.  

25. In view of the above, following the decision in Civil Appeal Nos.4935  

and 4936 of 2006, we dismiss the Civil Appeal No.4938 of 2006. However,  

Civil  Appeal  No.4937 of  2006  is  allowed  and  the  orders  of  the  learned  

Single Judge and the Division Bench of the High Court are set aside and the  

Writ Petition No.1433 of 1983 is dismissed in so far as the appellant in CA  

No.4937 of  2006 (Hariharan Nair).  

……………………………J. (R V Raveendran)

New Delhi; …………………………..J. December 1, 2010. (Mukundakam Sharma)