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CASE NO.: Appeal (civil)  5837 of 2007

PETITIONER: R.K. MOBISANA SINGH

RESPONDENT: KH. TEMBA SINGH & ORS.

DATE OF JUDGMENT: 12/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T [Arising out of SLP(C) No. 20724 of 2005] WITH CIVIL APPEAL NO. 5848 OF 2007 [Arising out of SLP(C) No. 20725 of 2005]

AND       CIVIL APPEAL NO. 5838 OF 2007 [Arising out of SLP(C) No. 16901 of 2006]

S.B. SINHA, J

1.      Leave granted.

2.      These appeals involving similar questions of law and fact were taken  up for hearing together and are being disposed of by this common judgment.    Appellant as also the private respondents hereto have been working as  Assistant Engineers in the Public Works Department.  The promotees  are  diploma holders, or degree holders in Engineering.  They were holding the  posts of S.O. Grade 1, whereas the direct recruits are Graduates in  Engineering.  Recruitment to the post of Assistant Engineer and/or  promotion thereto, although is governed by the Public Works Department,  Manipur Assistant Engineer (Civil/Mech) Surveyor of Works Recruitment  Rules of 1969, 1975 and 1984 made under the proviso appended to Article  309 of the Constitution of India; there does not exist any Rule governing   seniority and in particular inter se seniority amongst the direct recruits and  the promotees.

3.      In terms of the recruitment rules, whereas forty per cent of the posts  are to be filled by direct recruitment from the open market, 60 per cent of the  posts are to be filled up by promotion in the following sub-quota:- i.      50% by selection from amongst the Engineering  Degree holders who have rendered a minimum of 3  years regular service as S.O. Grade I as equivalent  Post.

       Provided that is sufficient number of Degree holders  are not available, the vacancies may be filled up by  Diploma holders with 8 years regular service as S.O.  Grade-I.

ii.     50% by selection from amongst the Engineering  Diploma Holders of 3 years course with 8 years  regular service as S.O. Grade I or non Degree/non  Diploma holders with 15 years outstanding record as  S.O. Grade I.

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4,      Before embarking on the questions involved in these matters, we may  notice the fact of the matter.   5.      The Government of Manipur informed the Manipur Public Service  Commission in regard to existence of 39 vacancies in the posts of Assistant  Engineer (AE) on or about 18.4.1977.  A request was made to convene  Departmental Promotion Committee for filling up the said vacant posts.   Some of the promotees, who were either the Graduates in Engineering or  were diploma holders in Engineering were working as Section Officers  (Grade-I).   We would come to their respective dates of appointment a little  later, but, at this stage, it may be noticed that in terms of the Recruitment  Rules,  in order to become eligible for promotion, three years\022 experience for  the Graduates in Engineering and eight years\022 experience for the diploma  holders in the posts of Section Officer (Grade-I) was necessary.   They had  been promoted on an ad hoc basis without following the procedure laid  down under the Recruitment Rules.  On or about 6.3.1979, the Government  of Manipur sent a revised proposal for appointment to the post of Assistant  Engineer (Civil/Mechanical) by promotion on regular basis.   However, yet  again on 22.6.1981, the Government of Manipur directed the Commission  for convening a regular Departmental Promotion Committee for  consideration of promotion to the post of Assistant  Engineer(Civil/Mechanical) in the following terms : \023I am directed to send herewith a requisition in the  MPSC Form No. 6 duly filled in for convening a regular  DPC for consideration of promotion to the post of  Assistant Engineer (Civil/Mech.).  Required ACRs and  Integrity certificates in respect of the eligible officers are  being sent separately.  You are requested kindly to  examine the case for convening a DPC at an early date.

Kindly acknowledge the receipt of this letter.

                                               Yours faithfully

Encl : As above                                                 (R. Marulung)                     Under Secretary to the Govt. of Manipur\024

        6.      Respondents were promoted as Assistant Engineers on an ad hoc  basis.  We may notice that the contesting respondent in SLP(C) No. 16901  of 2006 was promoted as Assistant Engineer on ad hoc basis against a  permanent vacancy.  He was appointed as Assistant Engineer on officiating  basis with effect from the date of joining of the post on the recommendations  of the Departmental Promotion Committee held on 18.7.1985 and 20.7.1985  in the 1985 vacancies, which was followed by an order dated 06.09.1986  regularizing his services from 20.09.1985.     

7.      Indisputably, a seniority list was published on 31.1.2000.

8.      Ten writ petitions were filed by the promotees before the High Court  raising a grievance that in the said seniority list, although they were shown  as Assistant  Engineers, having been appointed against the vacant posts in  the promotee quota under clear vacancies which were available in  1981  itself, they were appointed on ad hoc basis.  According to them, although  they were promoted to the post of Junior Engineer on ad hoc basis in or  about 1981, they had been shown as junior to direct recruits who were  appointed in 1986.

9.      A learned Single Judge of the High Court noticed that in some of the  cases, regularization with retrospective effect had been directed to be given.   It took note of the contention of the writ petitioners that they fulfilled the  eligibility criteria for promotion, but since at the relevant time, the

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Commission became defunct, they were promoted on ad hoc basis against  the available vacancies made for the promotees.  The learned Single Judge  recorded that the counsel appearing on behalf of the State was not in a  position to inform the court in regard to the vacancy position as was  obtaining then and furthermore the statements made in the writ application  in regard to promotion in excess of quota or grant of promotion in absence  of availability of any vacancy having not been controverted, the same should  be accepted to be correct.  It was furthermore noticed that the minutes of the  Review Committee were not made available to the Court and, therefore, it  arrived at a conclusion that the Review Committee failed to discharge its  duties, as a result whereof the impugned seniority list failed to demonstrate  the correct seniority position drawn in accordance with law.   10.     The learned Single Judge therefore, directed for preparation of a fresh  seniority list.  It was also directed that a Monitoring Committee be  constituted to ascertain the availability of vacancies with reference to the  years of appointment of the various promotees vis-‘-vis, the direct recruits  and to examine whether any of them encroached upon the quota meant for  others.  It was furthermore directed that in view of the failure on the part of  the State Government to place the correct factual position to conduct a basic  fact finding exercise in regard to availability of vacancies in respect of the  quotas, if any,  at the relevant point of time.        It was directed : \02332.   The Committee is to undertake the exercise having  followed the following guidelines

a.      The respective date of initial promotion on ad  hoc basis of the petitioners be treated as  substantive appointment as Assistant Engineer.

b.      The Committee is to ascertain the availability  of vacancy with reference to the year of  appointment of the petitioners already done on  ad hoc basis and also the appointment of private  respondents and to examine whether any of  them encroached the quota meant for others.

c.      The promotees and direct recruitees shall be  fitted against the available vacancies within  their respective quotas. d.      In case, any excess promotion/direct  appointment are found to be there, he or they  should be adjusted against the vacancy made  available subsequently.

e.      In considering the availability of vacancy the  Committee must count the vacancy simplicitor  be it temporary vacancy or substantive vacancy  in the post of Assistant Engineer.

f.      After exhausting the fitment exercise  the intra  seniority viz., the seniority of the promotee  themselves and the seniority of the direct  recruitees themselves should be prepared  separately.

g.      Thereafter, having maintained ratio of 3:2 inter  se seniority list is to be prepared, first 3  promotees would be listed thereafter 2 direct  recruitees would be listed followed by 3  promotees 2 direct and so on.  In case in any  year it is found that only some promotions are  made out, no direct recruitment, the promotees  should be shown enbloc senior vis-‘-vis in case  any particular year it is found that the only  direct recruitments were made and no

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promotion, the direct recruitees be shown  enbloc senior.

h.      To remove any confusion and doubt a draft  inter se seniority be published first inviting  claims and objections and personal hearing of  the objector/claimant if any, be allowed and,  thereafter, the final inter se seniority list be  published.  The said exercise must be  completed within a period of 3 months from  this day.

11.     Eleven Writ Appeals were filed thereagainst;  ten  by the direct  recruits and one by the State of Manipur which was marked as Writ Appeal  No. 384 of 2003.  It appears that the writ appeals came up before two  Division Benches of the High Court in two batches.  The judgment in the  first batch was rendered by a Division Bench on 31.3.2004 in terms whereof  the judgment of the learned Single Judge was affirmed.  The Division Bench  in those cases held that having regard to the fact that the orders of the High  Court granting retrospective regularization to the promotees having not been  challenged either by the direct recruits or by the State Government had  attained finality.    In the aforementioned premise, it was directed : \02310.  From the aforesaid, it is apparent to us, that for  whatever reasons the orders passed by the High Court in  the matter of regularization of the services of the  promotee officers covered under the writ appeals, were  not challenged by the State Government and has attained  finality.  The appellants also choose not to file appeals  against those orders moved applications for review of  those no to file applications for review of those orders as  has been done in other cases.  In the aforesaid  circumstances, the promotee officers  shall be taken to be  regularly promoted from the date they have been  regularized in the post of Assistant Engineers. In the  matter of seniority, without there being any impediment  under Rules, the seniority shall be counted in all  circumstances from the date of regular appointment on  the posts.\024

12.     Indisputably, the review petitions filed thereagainst were dismissed.   13.     However, the four remaining appeals came up for consideration  before another Division Bench, (although the senior Judge  in both the  batches of Writ Appeals was common). In the second judgment which was  pronounced on 24.8.2004, the Division Bench while allowing the appeal in  part, upholding the final seniority list,  found the directions of the learned  Single Judge in regard to constitution of three member Monitoring  Committee to make necessary corrections in the final list dated 31.1.2000 in  accordance with law and more particularly following the general guidelines  for promotion of 1982 and for determining seniority of 1959 and a  proposition \024A\024 of the decision of this Court in the case of direct  recruitment; to be improper.  Both the aforementioned judgments of the  Division Bench are now under challenge before us at the instance of the  direct recruits and the post 1985 vacancies promotees respectively.   

14.     The question herein which arises for our consideration is as to  whether the ad hoc promotions granted to the employees from the post of  Section Officer (Grade-I) to the post of Assistant Engineer in the P.W.D. of  Government of Manipur could have been directed to be regularized with  retrospective effect so as to effect the inter se seniority between the direct  recruits and the promotees. Two seniority lists were published; one in the  year 1987 and another in 2000.

15.     There are ten direct recruits before us.  The details of their services are  as under:-

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\023A. Direct Recruits

2000 List 87 List 1 Temba Singh Degree  holder Direct  Recruit Appointed  in 1985 At serial no.  33

2. Rabindra Kumar  Singh  ---do--- --do-- ---do--- At serial no.  38

3. Ch. Biren Singh   --do--   --do--   ---do--- At serial no.  39

4. G.Lungalin   --do--   --do-- Appointed  5.1.83 At serial no.  83 At serial no.  30 5. L. Ingochouba  Singh   --do--   --do-- Appointed  in 1985 At serial no.  48

6. M. Thaimon Singh   --do--   --do-- Appointed  in 1980 At serial no.  45 At serial no. 8 7.

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Ksh. Birendra  Singh   --do--   --do--   --do-- At serial no.  49 At serial no.  10 8. Kh. Irabot Singh   --do--   --do--   --do-- At serial no.  55 At serial no.  13 9. Th. Thambalngou  Singh   --do--   --do--   --do-- At serial no.  63 At serial no.  17 10. Pradeep Mukherjee   --do--   --do-- Appointed  15.1.81\024 At serial no.  77 At serial no.  26

16.     There are five promotee Assistant Engineers whose seniority has been  determined by the High Court, the details whereof are as under:- SL. No. Name of the  promotee Date of  appointment Date of Ad hoc  appointment Date of  regular/officiat ing  appointment Details of the  High Court  Order by which  regularized Government orders of  regularization/Remarks 1. Ch. Tiken  Singh  (Contesting  Respondent  No. 1 in

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SLP Arising  out of W.A.  No. 393/03)  At serial no.  37 in the  seniority list 26.7.1980  Section  Officer  Grade I  DOB 1.9.57 15.10.1981 AE  on regular  basis on  recommendatio n of DPC 20.9.1985  AE on regular  basis on  recommendati on of DPC Retrospective  regularization  from 26.7.1983  under the  relevant R.R.  vide order dated  5.4.1989 in C.R.  No. 392 of 1988

No order as to  retrospective  seniority  Government order  regularizing the  services w.e.f.  26.7.1983 explicitly  indicates seniority to  be determined later  2. I. Lokendra  Singh  (Contesting  Respondent  No. 1 in  SLP Arising  out of W.A.  No. 255/01)

At serial no.  60 in the  seniority list 26.6.1980 Section  Officer  Grade I  DOB 1.3.53 15.10.1981 AE on ad hoc  basis 20.09.1985 AE on  Officiating  basis on  recommendati

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on of DPC Retrospective  regularization  from 26.6.1983  vide order dated  5.6.1990 in C.R.  No. 160 of 1990

No order as to  retrospective  seniority.

The Hon\022ble  High Court  relied on order  passed in CR.  No. 392 of 1988

Government order  regularizing the  services w.e.f.  26.6.1983 explicitly  indicates seniority to  be determined later  

3. L.  Surchandra  Singh  (Contesting  Respondent  No. 1 in  SLP Arising  out of W.A.  No. 387/03  & W.A. No.  384/03) At serial no.  32 in the  seniority list 23.11.1976 Section  Officer  Grade I  DOB 1.3.50 9.7.1979 AE on ad hoc  basis 20.9.1985 AE on regular  basis on  recommendati on of DPC Retrospective  regularization  from date he  became eligible  vide order dated  13.9.1991 in  C.R. No. 399 of  1991

No order as to  retrospective  seniority.

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The High Court  relied on order  passed in CR.  No. 160 of 1991. The High Court  in its order  recorded that he  was not eligible  for promotion to  A.E.

Government order  regularizing the  services w.e.f.  23.11.1979 explicitly  indicates seniority to  be determined later

4. W. Chaoba  Singh (Contesting  Respondent  No. 2 in  SLP Arising  out of W.A.  No. 385/03)

At serial no.  56 of the  seniority list 06.01.1972 Section  Officer  Grade I

DOB 1.3.49 30.10.1976 AE on ad hoc  basis 20.9.1985 AE on regular  basis on  recommendati on of DPC Retrospective  regularization  from 30.10.1976  vide order dated  17.12.1991 in  C.R. No. 639 of  1991.   No order as to  retrospective  seniority.

The High Court  relied on order  passed in C.R.  No. 132/1990  wherein the  High Court had  granted  regularization

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along with  seniority.  This  order was  challenged in a  review petition  by the Direct  Recruits and the  order has been  modified to be  extent that the  seniority will be  determined  according to  rules.

Government order  regularizing the  services w.e.f.  30.10.1976 explicitly  indicates seniority to  be determined later.

5. S. Tejamani  Singh  (Contesting  Respondent  No. 1 in  SLP Arising  out of W.A.  No. 386/03) At serial no.  35 of the  seniority list 23.11.1976 Section  Officer  Grade I 1.11.47 9.7.1979 AE on Ad hoc  basis 20.9.1985 AE on regular  basis on  recommendati on of DPC Retrospective  regularization  vide order dated  18.12.1991 in  C.R. No. 639 of  1991

No order as to  retrospective  seniority

The High Court  relied on order  passed in C.R.  No. 132/1990  wherein the high

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court had  granted  regularization  along with  seniority.  This  order was  challenged in a  review petition  by the Direct  Recruits and the  order has been  modified to the  extent that the  seniority will be  determined  according to  rules

Government order  regularizing the  services w.e.f.  9.7.1979 explicitly  indicates seniority to  be determined later

6. Th.  Rupachandra  Singh (Contesting  Respondent  No. 1 in SLP  Arising out  of W.A. No.  385/03) At serial no.  59 of the  seniority list 28.10.1971 Section  Officer  Grade I  DOB  1.11.48 30.10.1976 AE on Ad hoc  basis 20.9.1985 AE on regular  basis on  recommendati on of DPC Retrospective  regularization  from vide order  dated 23.1.1992  in C.R. No.  2372 of 1990 No order as to  retrospective  seniority

Government order

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regularizing the  services w.e.f.  30.10.1976 explicitly  indicates seniority to  be determined later.

17.     There are four promotees whose claim to seniority has been rejected  by the High Court. SL. No. Name of the  promotee Date of  appointment Date of Ad hoc  appointment Date of  regular/officiat ing  appointment High Court  order by which  regularized  Violations  1. R.K.  Mobisana  (Degree  holder)  (Petitioner  in SLP(C)  No. 20724  of 2005)  

At serial no.  64 in the  seniority list 25.7.1980 Section  Officer  Grade I (DOB  1.3.56) 6.5.1983 AE on ad hoc  basis 20.9.1985 AE on  officiating  basis on  recommendati on of DPC Retrospective  regularization  w.e.f. 26.7.1983  under the  relevant R.R.  vide order dated  3.3.2000 in  W.P.(C) No. 188  of 2000

High Court  order  specifically

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states his  regularisation  shall be counted  for the purpose  of retrial or  pensionary  benefits and  seniority to be  determined  according to  rules.  

Government  order  regularizing the  services  explicitly  indicates it is for  retrial and  pensionary  benefits.   Seniority to be  determined later  

- Admittedly the  promotion was dehors  the R.R.s ; there was  no selection process  conducted by the DPC

- Became eligible for  promotion only after  three years from the  date of appointment  i.e. on 25.7.1983 but  was promoted on ad  hoc basis on 6.5.1983,  much earlier to his  eligibility date.

2. M.  Hemantaku mar  (Degree  holder)  (Petitioner  in SLP(C)  No. 20725  of 2005) At  serial  number 45  in seniority  list 25.7.1980 Section  Officer  Grade I (DOB  1.3.53) 26.7.1983 AE on ad hoc  basis 20.09.1985 AE on regular

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basis on  recommendati on of DPC

- Admittedly the  promotion was dehors  the R.R.s.; there was  no selection process  conducted by the DPC 3. Th.  Shantikuma r Singh  (Degree  holder) 25.7.1980 Section  Officer  Grade I 6.5.1983 A.E. on Ad  hoc basis

-Admittedly the  promotion was dehors  the R.R.s; there was no  selection process  conducted by the DPC

- Became eligible for  promotion only after  three years from the  date of appointment  i.e. on 25.7.1983 but  was promoted on ad  hoc basis on 6.5.1983,  much earlier to his  eligibility date 4. Mongjam  Budhi  Singh  (Diploma  Holder) 14.11.1969 Section  Officer  Grade I 25.2.1981 A.E. on Ad  hoc basis  

- Admittedly the  promotion was dehors  the R.R.s; there was no  selection process  conducted by the DPC

18.     Out of the aforementioned four persons, only R.K. Mobisana and N.  Hemantakumar both of whom are degree holders are before us, but the other  two promotees namely Th. Shantikumar Singh and Mongjam Budhi Singh  have not filed any special leave petition.

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19.     Submissions of the aforementioned two appellants whose writ  petitions have been dismissed and the other promotee respondents before us  are as under :                  (i)     They having been promoted against vacancies arising in the year 1985  in the promotee quota and their services having been regularized with  retrospective effect and not by way of stop gap employment, their  seniority should be considered in the light of the proposition \021B\022  contained in the judgment of this Court in Direct Recruit Class II  Engineering Officers\022 Association Vs. State of Maharashtra and  Others [(1990) 2 SCC 715].

(ii)    The recruitment rules having not contained any prohibition on grant of  regularisation with retrospective effect and in any event the same  being permissible inter alia, in terms of the decision of this Court in  Suraj Prakash Gupta and Others Vs. State of J&K and Others [(2000)  7 SCC 561] , the first judgment of the High Court should not be  interfered therewith.  The promotees were therefore, entitled to  seniority with effect from 26.7.1983 i.e. from the date from which  their services were regularized with retrospective effect by orders  passed in their favour by the Gauhati High Court, Imphal Bench from  time to time.    (iii)   So far as the second judgment of the Gauhati High Court is  concerned, the same does not lay down the correct law being contrary  to and inconsistent with the principles laid down by this Court in  Direct Recruit (supra),  State of West Bengal Vs. Aghore Nath Dey  [(1993) 3 SCC 371] and Suraj Prakash (supra).

(iv)    The learned Single Judge, in any event, having directed examination  of the matter by a fact finding body upon proper application of mind  and determination of seniority having regard to the decisions of this  Court, the same deserves to be affirmed.

20.     Mr. L.N. Rao, learned counsel appearing on behalf of the direct  recruits, on the other hand, would submit that the promotees were not  entitled to seniority from the date of their ad hoc promotion for the following  reasons; (i)     Ad hoc promotions were found to have been made in violation of the  Recruitment Rules. (ii)    The procedure prescribed for grant of regular promotion had not been  followed. (iii)   Some of the promotees did not fulfil the requisite eligibility criteria  prescribed by the rules. (iv)    The orders passed by the High Court directing regularisation with  retrospective effect did not confer on  them any consequential  seniority. (v)     Some judgment of the High Court giving consequential seniority were  reviewed in favour of the direct recruits. (vi)    There is no rule which enables the Government to give seniority with  retrospective effect to the promotees. (vii)   The Direct Recruits cannot be found fault with for non questioning of  the orders of regularization in favour of the promotees as they, in  stricto sensu, did not have the locus standi therefor, until  the decision  to confer consequential seniority which adversely affected their rights  was taken by the competent authority.  (viii)  All High Court orders granting regularization were silent on seniority. (ix)    The consequent orders of the Government regularizing the services  specifically stated that the seniority shall be determined later.  This  order was not challenged by the promotees. (x)     In three cases where the High Court granted seniority, review  petitions were filed by the Direct recruits and the order was modified  stating that the seniority will be determined according to rules and as  these review orders have become final, any sub mission made  contrary thereto should not be permitted to be raised. (xi)    Had there been any mention of seniority in any of the High Court

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orders referred to in the judgment of the Division Bench, the Direct  recruits could have challenged the same. (xii)   Their exists no rule which enabled the Government to grant seniority  with retrospective effect.       21.     These matters clearly demonstrate as to how complications arise in the  matter of determination of inter se seniority because of absence of specific  rules made in this behalf.         22.     We may, however, at the outset notice that meeting of the  Departmental Promotion Committee had not been convened in terms of the  extant rules.       23.     We have noticed hereinbefore that there are various recruitment Rules  which are applicable in respect of recruitment or the promotions.  We will  take a brief survey of the said Rules which may be held to be applicable as  orders of promotion have been passed on various days.   24.     Under the Recruitment Rules, 1969, the method of recruitment  prescribed for the post of A.E. is: \023--50 % by direct recruitment from the open market and ; --50 % by promotion from amongst the Section Officers  (Civil) who had rendered 2 years of regular service in the  grade after appointment on regular basis in case of  Degree holders and 5 years service in grade after  appointment on regular basis in cases of Diploma  holders.\024

25.     Under the Recruitment Rules, 1975 the method of recruitment  prescribed is: \023-40% of the overall sanctioned strength by direct  recruitment. -60% of the overall sanctioned strength by promotion.   This is to be filled up in the sub-quota as under:

(i)     50% sub-quota by selection from amongst the 3  years course Diploma holder  (Civil/Mechanical) with 8 years regular service  as S.O. Grade 1 or a post declared by the  Government to be equivalent post.

(ii)    40% sub-quota by selection from amongst the  graduate Engineer (Civil/Mechanical) who have  rendered 3 years regular service as S.O. Grade I  or in a post declared by the Government to be  equivalent.

(iii)   10% sub-quota by selection from amongst non  Graduate, non Diploma S.O. Grade I who has  rendered 12 years continuous regular service.\024       26.     Under the Recruitment Rules, 1984, the method of recruitment  prescribed is; \023-40% by Direct recruitment from the open market. -60% by promotion which is to be filled up under the following  sub quota:       i)      50% by selection from amongst the Engineering Degree  holders who have rendered a minimum of 3 years regular  service as S.O. Grade I as equivalent Post.

Provided that is sufficient number of Degree holders are  not available, the vacancies may be filled up by Diploma  holders with 8 years regular service as S.O. Grade-I.

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ii)     50% by selection from amongst the Engineering Diploma  Holders of 3 years course with 8 years regular service as  S.O. Grade I or non Degree/non Diploma holders with 15  years outstanding record as S.O. Grade I.       27.     However, admittedly there does not exist any rule for determination of  inter se seniority.          They were governed by some office memorandums.  An Office  Memorandum was issued on 22.12.1959 providing for general principles for  determination of seniority in the general services wherein inter alia it was  stated; \0235. Promotees: (i)  The relative seniority of persons  promoted to the various grades shall be determined in the  order of their selection for such promotions;

Provided that where persons recruited initially on  temporary basis are confirmed subsequently in an order  different from the order of merit indicated at the time of  their promotion, seniority shall follow the order of  confirmation and not the original order of merit.

(ii)  Where promotion to a grade are made from more  than one grade the eligible persons shall be arranged in  separate lists in the order of their relative seniority in  their respective grades.  Thereafter, the Departmental  Promotion Committee shall select the persons for  promotion from each list upon the prescribed quota and  arrange all the candidates selected from different lists in a  consolidated order of merit which will determine the  seniority of the persons on promotion to the higher grade.

Note:  If separate quotas for promotion have not already  been prescribed in relevant recruitment rules, the  Ministries/Departments may do so now, in consultation  with the Commission wherever necessary.

6.  Relative Seniority of Direct:  Recruits and promotees.   The relative seniority of direct recruits and of promotees  shall be determined according to the rotation of vacancies  between direct recruits and promotees which shall be  based on the quotas of vacancies reserved for direct  recruitment and promotion respectively in the  Recruitment Rules.\024

     28.     The legal principles governing determination of inter se seniority is no  longer res-integra.   The question came up for consideration before a  Constitution Bench of this Court in the Direct recruit (supra) wherein the  following criteria were laid down; \023(A) Once an incumbent is appointed to a 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.

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(C)  When appointments are made from more than one  source, it is permissible to fix the ratio for recruitment  from the different sources, and if rules are framed in this  regard they must ordinarily be followed strictly.

(D)  If it becomes impossible to adhere to the existing  quota rule, it should be substituted by an appropriate rule  to meet the needs of the situation.  In case, however, the  quota rule is not followed continuously for a number of  years because it was impossible to do so the inference is  irresistible that the quota rule had broken down.

(F)  Where the rules permit the authorities to relax the  provisions relating to the quota, ordinarily a presumption  should be raised that there was such relaxation when  there is a deviation from the quota rule.

(H)  If the quota rule is prescribed by an executive  instruction, and is not followed continuously for a  number of years, the inference is that the executive  instruction has ceased to remain operative.\024

29.     Inter se seniority between the parties keeping in view the peculiar fact  situation obtaining herein is required to be considered.   Before applying the  principles laid down therein to the fact of this case, we may notice a few  other decisions of this Court. 30.     In Suraj Prakash Gupta Vs State of J& K & Ors. [(2000) 7 SCC 561],  the Rule which was applicable therein was as under:- \02353. Then comes the rule of \023seniority\024.  Seniority is to  be determined by the \023date of first appointment\024 to such  service, class or category or grade.   It reads as follows:

  \02324.  Seniority \026 (1) The seniority of a person who  is subject to these Rules has reference to the service,  class, category and grade with reference to which the  question has arisen.  Such seniority shall be  determined by the date of first appointment to such  service, class, category or grade, as the case may be.

Note 1. \026 Interpretation \026 The words \021date of first appointment\022  occurring in the above Rule will mean the date of first  substantive appointment, meaning thereby the date of  permanent appointment or the date of first  appointment on probation on a clear vacancy,  confirmation in the latter case being subject to good  work and conduct and/or passing of any examination  or examinations and/or tests:

Provided that the inter se seniority of two or more  persons appointed to the same service, class, category  or grade simultaneously, will, notwithstanding the fact  that they may assume the duties of their appointments  on different dates by reason of being posted to  different stations, be determined:

    (a) in the case of those promoted by their relative  seniority in the lower service, class, category or grade;            (b) in the case of those recruited direct (except  those who do not join their duties when vacancies are  offered to them) according to the positions attained by  and assigned to them in order of merit at the time of

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competitive examinations or on the basis of merit and  ability and physical fitness etc., in case no such  examination is held for the purpose of making selections;            (c) as between those promoted and recruited direct,  by the order in which appointments have to be allocated  for promotion and direct recruitment as prescribed by the  Rules.

  Note. -             *                        *                         *         

It has to be noticed that the interpretation clause below  Rule 24 is very wide and under that provision, seniority  of a promotee depends on the date of the commencement  of probation on a clear vacancy.   Probation can be  commenced in the case of a person promoted or recruited  by transfer from the date of existence of a clear vacancy  in the promotee/transfer quota and depending upon his  eligibility, suitability based on ACRs.\024

       Having regard to the said Rule in mind this Court surveyed the  precedents one way or the other to hold; \02371. The direct recruits have strongly relied upon the  decision in V. Sreenivasa Reddy v. Govt. of A.P. 12 But  this decision cannot be of any help to them. In that case  Rule 10 and Rule 23 of the Andhra Pradesh State and  Subordinate Service Rules were referred to. It was  pointed that the promotees\022 temporary service under  Rule 10 (i.e. service rendered in a post to which the  officer was not appointed according to rules), could not  be counted on facts, because there was no order of  retrospective regularisation. In fact, this Court accepted  that if regularised under Rule 23 of the A.P. Rules, the  temporary appointees could have been regularised from  an anterior date. (This Court then referred to certain  rulings which said that direct recruits could not count  ad hoc service rendered by them before their regular  selection.) On facts, this Court held that the  Government had relaxed the Rule regarding PSC  consultation but had placed the promotees below the  direct recruits and this need not be interfered with. This  case far from supporting the direct recruits, supports the  promotees.\024  

       Holding that decision of K. Siva Reddy Vs. State of A.P. [(1988)  Supp. SCC 225] and Ramendra Singh Vs. Jagdish Prasad [1984 Supp SCC  142] were not applicable to the fact of that case it was opined; \02375. These rulings cannot be applied to the case of the  promotees. In fact the principle laid down in these cases  is consistent with the principles in service jurisprudence  so far as the ad hoc service rendered by direct recruits  before the date of their regular selection is concerned.  Their service counts only from the date of regular  appointment according to rules and any ad hoc/stopgap  service rendered before regular selection cannot count  for seniority.\024        31.     The Court in paragraph 77 of the judgment noticed the decisions  where promotees were held to be not entitled to seek regularisation of ad hoc  services in certain situations.  The Court summarized its finding in  paragraph 79 in the following terms; \02379. Summarising the position, we therefore hold that the  ad hoc/stopgap service of the promotees cannot be  treated as non est merely because PSC was not consulted

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in respect of continuance of the ad hoc/stopgap service  beyond six months. Such service is capable of being  regularised under Rule 23 of the J&K (CCA) Rules, 1956  and rectified with retrospective effect from the date of  occurrence of a clear vacancy in the promotion quota,  subject to eligibility, fitness and other relevant factors.  There is no \023rota\024 rule applicable. The \023quota\024 rule has  not broken down. Excess promotees occupying direct  recruitment posts have to be pushed down and adjusted in  later vacancies within their quota, after due  regularisation. Such service outside the promotee quota  cannot count for seniority. Service of the promotees  which is regularised with retrospective effect from the  date of vacancies within the quota counts for seniority.  However, any part of such ad hoc/stopgap or even  regular service rendered while occupying the direct  recruitment quota cannot be counted. Seniority of the  promotees or transferees is to be fixed as per quota and  from the date of commencement of probation/regular  appointment as stated above. Seniority of direct recruits  is from the date of substantive appointment. Seniority has  to be worked out between direct recruits and promotees  for each year. We decide Point 3 accordingly.       Point 4  Direct recruits cannot claim appointment from date of  vacancy in quota before their selection\024          32.     In M.K. Shanmugam and Anr. Vs. Union of India & Ors. [(2000) 4  SCC 476], direct recruitment and ad hoc appointment was distinguished  stating : \023...If the ad hoc selection is followed by regular  selection, then the benefit of ad hoc service is not  admissible if ad hoc appointment is in violation of the  rules. If the ad hoc appointment has been made as a  stopgap arrangement and where there was a procedural  irregularity in making appointments according to rules  and that irregularity was subsequently rectified, the  principle to be applied in that case was stated once  again. There is difficulty in the way of the appellants to  fight out their case for seniority should be reckoned by  reason of the length of the service whether ad hoc or  otherwise inasmuch as they had not been recruited  regularly. As stated earlier, the appellants were  regularly found fit for promotion only in the year 1977  and if that period is reckoned their cases could not be  considered as found by the Tribunal.\024         It was furthermore observed;

\023It is only in those cases where initially they had been  recruited even though they have been appointed ad hoc  the recruitment was subject to the same process as it had  been done in the case of regular appointment and that the  same was not a stopgap arrangement.  That is not the  position in the present cases at all.   Therefore, we are of  the view that the conclusions reached by the Tribunal  appear to us to be correct and call for no interference.   However, we make it clear, as noticed earlier, that while  amending the Rules of Recruitment in 1984 all those who  are already in service will be borne in mind in adjusting  the seniority amongst the promotees inter se and suitable  adjustments could be made and so far as the direct  recruits are concerned, their cases will go by their quota  rule and the view taken by the Tribunal in this regard  cannot be taken exception of.\024

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33.     Suraj Prakash Gupta (supra) has been distinguished by this Court in  Swapan Kumar Pal and Others Vs. Samitabhar Chakraborty and Others  [(2001) 5 SCC 581] stating; \0238. ...The next case relied upon by Mr.Rao is the case of  Suraj Prakash 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  regularized 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.     (emphasis supplied)

34.     To the similar effect is the decision of this Court in Md. Israil and  Others Vs. State of W.B. and Others [2002) 2 SCC 306],  noticing Suraj  Prakash Gupta (supra) and Shanmugam (Supra) wherein it was opined that  those decisions were rendered having regard to the peculiar rules which were  governing the service conditions of the employees;

35.     We may furthermore notice that this Court in D.N. Agrawal and Anr.  Vs. State of Madhya Pradesh and Others [(1990) 2 SCC 553] has  categorically held that ad hoc promotion without following the Recruitment  Rules  would not lead to any right for computation of seniority.

36.     In Santosh Kumar Vs. G.R. Chawla [(2003) 10 SCC 513], this Court  opined : \02317. It was contended by the learned counsel for the  appellants that in view of Rule 4, the 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 16-9-1982/17-9-1982 and the  services of the appellants were regularised only on 22-9- 1982.\024  

37.     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. 38.     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. 39.     If they had been given regularisation with retrospective effect, the

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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. 40.     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.   41.     It was for the DPC to recommend in regard thereto.   42.     In some of the cases, evidently the procedure has not been followed.   Therefore, the question of their acquiring seniority over the direct recruits  does not arise. 43.     The matter, therefore, requires a closure scrutiny by the State itself.   As the function relating to determination of inter se seniority is that of the  State, we do not approve constitution of a committee, as has been proposed  by the learned Single Judge.  It would, however, be open to the State to do  so, if it so desires.  The competent authority of the State is, therefore,  directed to determine the inter se seniority of the parties in view of the  principles enunciated hereinbefore and apply the same to the fact of each  case.  Such an exercise should be completed within a period of three months.   These appeals are, therefore, disposed of with the aforementioned  observations and directions with no order as to costs.