REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APEAL NO.    3620           OF 2009 (Arising out of SLP (C ) No. 2848 of 2006)

State of Rajasthan and Ors. …Appellants

Versus

Jagdish Narain Chaturvedi ….Respondent

WITH  

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Civil Appeal No.       3736/2009 @ SLP (C) No.6611/2005 Civil Appeal No.       3737/2009 @ SLP (C) No. 26907/2004 Civil Appeal No.     3738/2009 @ SLP (C) No. 26896/2004 Civil Appeal No.     3739/2009 @ SLP (C) No.26895/2004 Civil Appeal No.      3740/2009 @ SLP (C) No.5132/2005 Civil Appeal No.   3741/2009 @ SLP (C) No.5134/2005 Civil Appeal No.    3742/2009 @ SLP (C) No.25624/2005 Civil Appeal No.     3743/2009 @ SLP (C) No.25651/2005 Civil Appeal No.     3744/2009 @ SLP (C) No.26002/2005 Civil Appeal No.      3745/2009 @ SLP (C) No. 26512/2005 Civil Appeal No.      3747/2009 @ SLP (C) No. 25684/2005 Civil Appeal No.     3748/2009 @ SLP (C) No.26211/2005 Civil Appeal No.   3749/2009 @ SLP (C) No. 439/2006 Civil Appeal No.   3750/2009 @ SLP (C) No.441/2006 Civil Appeal No.    3751/2009 @ SLP (C) No.898/2006

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Civil Appeal No.     3752/2009 @ SLP (C) No.895/2006 Civil Appeal No.      3753/2009 @ SLP (C) No. 1687/2006 Civil Appeal No.      3754/2009 @ SLP (C) No.1723/2006 Civil Appeal No.      3757/2009 @ SLP (C) No.2354/2006 Civil Appeal No.      3758/2009 @ SLP (C) No.2417/2006 Civil Appeal No.     3759/2009 @ SLP (C) No.2689/2006 Civil Appeal No.   3760/2009 @ SLP (C) No.1736/2006 Civil Appeal No.   3761/2009 @ SLP (C) No.2111/2006 Civil Appeal No.   3762/2009 @ SLP (C) No.3460/2006 Civil Appeal No.   3763/2009 @ SLP (C) No.4096/2006 Civil Appeal No. 3764/2009 @ SLP (C) No.3773/2006 Civil Appeal No.   3765/2009 @ SLP (C) No.3776/2006 Civil Appeal No.   3766/2009 @ SLP (C) No.4298/2006 Civil Appeal No.    3767/2009 @ SLP (C) No.4097/2006 Civil Appeal No.    3768/2009 @ SLP (C) No.4095/2006 Civil Appeal No.    3769/2009 @ SLP (C) No.4740/2006 Civil Appeal No.     3770/2009 @ SLP (C) No.5365/2006 Civil Appeal No.     3771/2009 @ SLP (C) No.5840/2006 Civil Appeal No.    3772/2009 @ SLP (C) No.5841/2006 Civil Appeal No.    3773/2009 @ SLP (C) No.5828/2006 Civil Appeal No.    3774/2009 @ SLP (C) No.5821/2006 Civil Appeal No.     3775/2009 @ SLP (C) No.5830/2006 Civil Appeal No.      3776/2009 @ SLP (C) No.5824/2006 Civil Appeal No.       3777/2009 @ SLP (C) No.105/2005 T.P.(C) No. 198/2006

T.P.(C) No. 195/2006 T.P.(C) No. 200/2006 T.P.(C) No. 196/2006 Civil Appeal No. 3778/2009 @ SLP (C) No.6353/2006 Civil Appeal No.  3779/2009 @ SLP (C) No.8041/2006 Civil Appeal No.   3780/2009 @ SLP (C) No.6677/2006 Civil Appeal No.    3781/2009 @ SLP (C) No.6982/2006 Civil Appeal No.     3782/2009 @ SLP (C) No.7283/2006 Civil Appeal No.     3783/2009 @ SLP (C) No.8517/2006 Civil Appeal No.      3784/2009 @ SLP (C) No.8620/2006

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Civil Appeal No.       3814/2009 @ SLP (C) No.18870/2006 Civil Appeal No.       3815/2009 @ SLP (C) No. 21327/2006 Civil Appeal No.        3816/2009 @ SLP (C) No. 598/2007 Civil Appeal No.        3817/2009 @ SLP (C) No. 599/2007 Civil Appeal No.        3818/2009 @ SLP (C) No. 601/2007

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J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Leave granted.

2. In these cases the State of Rajasthan had questioned correctness of the  

judgment rendered by different benches of the Rajasthan High Court allowing  

the Writ Petitions filed by the respondent in each case. The basic issue was  

whether ad hoc appointment or appointments on daily wage  or work charge  

basis  are  appointments  made  to  the  cadre/service   in  accordance  with  the  

provisions  contained in the recruitment rules contemplated by the Government  

Orders dated 25.1.1992 dated 17.2.1998.  It is the stand of the appellants that  

they are not, while the respondents contend to the contrary. The cases at hand  

relate  to  the  appointments  made  under  the  Rajasthan   Subordinate  Offices  

Ministerial  Staff  Rules,  1957  (in  short  the  ‘Ministerial  Staff  Rules’),   the  

Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967 (in  

short  the ‘Irrigation  Branch Rules’),  the  Work Charged Employees Services  

Rules,  1964  (in  short  Work  Charged  Rules),  the  Rajasthan  Agricultural  

Subordinate  Service  Rules,  1978  (in  short  the  ‘Subordinate  Rules’),  the  

Rajasthan  Forest  Subordinate  Service  Rules,  1963  (in  short  the  ‘Forest  

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Subordinate  Rules’),  Rajasthan  Panchayat  Samiti  and  Zila  Parishad  Service  

Rules,  1959  (in  short  the  ‘Panchayat  Service  Rules’)  and  the  Rajasthan  

Secretariat  Ministerial  Service Rules, 1970 (in short the ‘Ministerial  Service  

Rules’) .  

3. Stand  of  the  appellants  essentially  is  that  the  stagnation  benefits  are  

given from the date of regularization. It is submitted that this question has been  

decided in  State of Haryana v. Haryana Veterinary & AHTS Association and  

Anr. (2000 (8) SCC  4). It is the stand of the State that the stagnation benefits  

are given since chance of promotion is not there.  There is no question of any  

regularization if the proficiency test is not passed.  Circulars relied upon by the  

employees refer to regular service.  

4. In the Notification dated 29.3.1995 paras 3, 4 and 5 are of relevance.  

Para 3 refers to regular service while para 4 states about 10% of benefit to 10%  

to all the eligible employees and para 5 is the most crucial as it relates to the  

benefit being given after  regular appointment. Initially, the period fixed was  

15 years, later it was made to three different periods  of 9  years, 18 years and  

27  years.  Subsequent  Notification  is  dated  25.1.1992   which  talks  of  

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promotion.  Obviously,  the  promotion  has  to  be  from the  existing  cadre  in  

service.  

5. Stand of the appellants is that the appointments  can be   relatable to the  

existing cadre/service  and in case of ad hoc and  work charge service there is  

no reference to any cadre.  The recruitment rules specifically refer to existing  

cadre/service. This position is clarified by a Notification dated 3.4.1993. The  

crucial paragraph is para 3 which speaks of action being taken in accordance  

with the recruitment rules.  By a Notification of 17.2.1998, all previous orders  

were superseded.

6. Stand of the appellants in essence is that the High Court confused regular  

appointment made to the cadre/service with appointment to the post. It is also  

submitted  that  if  there  was  no  regularization  there  was  no  scope  for  any  

promotion. With reference to Rule 25(4) it is submitted that the  same relates to  

prospective  employment   as  is  evident  from the  expression  “occurrence  of  

vacancy”.  Starting  point  therefore  is  when  the  employee  is  born  in  the  

cadre/service. Ad hoc employees had no right to the post.   

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7. It is submitted that though reference was made to 1992 circular the same  

was  misread.  Since  it  was   a  wrong  decision  there  is  no  question  of  any  

negative equality.

8. Learned  counsel  for  the  respondent  in  each  case  on  the  other  hand  

submitted  that  similar  issues  were  decided  earlier  and  the  special  leave  

petitions had been dismissed. Further, in the case of LDCs also, the State did  

not  question the correctness of the decision.  

9. A few provisions   of  the  Rajasthan  Absorption  of  Surplus  Personnel  

Rules, 1969 (in short the ‘Rules’) need to be noted.  

10. Rule 3(a) refers to  ad hoc appointment and reads as follows:

“Ad  hoc  appointment  means  temporary  appointment  made without selection of the candidate by any of the methods  of recruitment provided under the relevant service rules, or any  orders  of  Government   where  no  service  rules  exist  and  otherwise than on the recommendation  of the Commission  if  the post is in its purview.”  

11. It  needs  to  be  noted  that   there  is  no  scope  for  raising  an  issue  that  

executive instructions can override the rules. The law is to the contrary. The  

Notification dated 3.4.1993  speaks of “in accordance  with recruitment rules”.  

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Clarification was necessary because of doubts regarding regular appointment.  

It is made clear that the period  rendered in the existing cadre before regular  

employment in accordance with the relevant recruitment rules  to the post is  

because of change of cadre the previous period  is not counted so there is no  

question of giving the benefit to ad hoc employees and the appointment letters  

which were illustratively filed indicate that  the appointments were till regular  

appointment  was  made.  Ad  hoc  appointment  is   not  made  in  terms  of  the  

requirements of the rules. The benefit is extended to  avoid stagnation.  In case  

of ad hoc employees, stagnation is  till the regularization is made.  The stress in  

the  present  case  is  on   regular  appointment  to  cadre/service.  As  rightly  

contended by learned counsel for the State, the High Court  confused itself with  

appointment to post. The question of promotion arises only when appointment  

is a regular appointment.  Appointment to the post is not relevant; on the other  

hand, what is relevant is the period relatable to the cadre of the service.  

12. Rule  25(4)  relates  to  prospective  appointment  as  is  clear  from  the  

expression ‘occurrence’. Therefore, the starting point has to be as noted above,  

when  the  employee  is  born  in  the  cadre,  as  observed  by this  Court  in  Dr.  

Chanchal  Goyal  (Mrs.) v.  State  of  Rajasthan (2003  (3)  SCC 485),  Santosh  

Kumar and Ors. v. G. R. Chawla and others (2003 (10) SCC 513) and A.G.  

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Sainath Reddy v. Govt. of A.P. & Ors. (2003 (4) SCC 625). Ad hoc employee  

has  no  right  to  the post   and   ad hoc appointment  does  not  count   for  the  

purpose of seniority.  

13. The High Court  has referred to the cases of the LDCs. It  is clear  on  

reading of the decision of the High Court that  though the same was decided on  

the  factual background of 1992 circular  it  mis-construed  the same. Wrong  

decision does not create a right. There  is no question of negative equality. (See  

Indian Council of  Agricultural Research & Anr. v. T.K. Suryanarayan & Ors.  

(1997  (6)  SCC  766),  Gursharan  Singh  and  Ors. v.  New  Delhi  Municipal  

Committee and Ors.  (1996 (2) SCC 459) and  Chandigarh Administration and  

Anr. V. Jagjit Singh and Anr. (1995 (1) SCC 745).  Methods of recruitment are  

in Rule 5.  The standard procedure is contained in Rules 16 and 17. Rule 22  

refers to the recommendation and Rule 23 relates  to the appointment  to the  

service. Rule 23 speaks of deemed regularization and after 7.11.1975 procedure  

has to be followed.  Sub-Rule (9) is of considerable importance.  It speaks of  

appointment  on regular basis on availability of vacancy, the requirement to  

pass a performance test and the number of chances  given for such post. Rule  

27 speaks of appointment to the service. Rule 28 speaks of urgent temporary  

appointment when  no post be filled up by direct recruitment or by promotion  

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immediately. There is  no conceptual  difference between the two. The High  

Court  has  equated  them.   The  Haryana  Veterinary  case (supra)  has  been  

distinguished by the High Court saying that the appointment in this case was  

not  de hors  by relying  of Rule 28.  The decision is fundamentally wrong  

because the conceptual difference between Rule 23 and Rule 28 has been lost  

sight of. In paras 7, 9, 10, 11 and 12 of the Haryana case it has been observed  

as follows:

“7.  Coming  to  the  circular  dated  2-6-1989,  issued  by  the  Financial  Commissioner  and Secretary to  the  Government  of  Haryana,  Finance  Department,  it  appears  that  the  aforesaid  circular had been issued for removal of anomalies in the pay  scale of Doctors, Deputy Superintendents and Engineers, and  so far as  Engineers  are concerned,  which  are in  Class  I  and  Class  II,  it  was  unequivocally  indicated  that  the  revised  pay  scale of Rs 3000 to Rs 4500 can be given after completion of  5 years of regular service and Rs 4100 to Rs 5300  after  completion of 12 years of regular service. The said Financial  Commissioner had issued yet another circular dated 16-5-1990,  in  view  of  certain  demands  made  by  officers  of  different  departments.  The  aforesaid  circular  was  issued  after  reconsideration by the Government modifying to some extent  the earlier circular of 2-6-1989, and even in this circular it was  categorically indicated that so far as Engineers are concerned,  they would get  Rs 3000 to 4500 after 5 years of regular and  satisfactory service and selection grade in the scale of pay of  Rs 4100 to Rs 5300, which is limited to the extent of 20% of  the cadre post  should be given after  12 years of regular and  satisfactory  service.  The  aforesaid  two  circulars  are  unambiguous  and  unequivocally  indicate  that  a  government  servant would be entitled to the higher scale indicated therein  only on completion of 5 years or 12 years of regular service  

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and  further  the  number  of  persons  to  be  entitled  to  get  the  selection grade is limited to 20% of the cadre post. This being  the position,  we fail  to understand how services rendered by  Rakesh Kumar from 1980 to 1982, which was purely on ad hoc  basis, and was not in accordance with the statutory rules can be  taken into account for computation of the period of 12 years  indicated in  the  circular.  The majority judgment  of  the  High  Court committed serious error by equating expression “regular  service” with “continuous service”. In our considered opinion  under the terms and conditions of the circulars dated 2-6-1989  and  16-5-1990,  the  respondent  Rakesh  Kumar  would  be  entitled  for  being  considered  to  have  the  selection  grade  on  completion of 12 years from 29-1-1982 on which date he was  duly appointed against a temporary post of Assistant Engineer  on being selected by the Public Service  Commission and not  from any earlier point of time. The conclusion of the majority  judgment  in  favour  of  Rakesh  Kumar,  therefore,  cannot  be  sustained.

xxx xxx xxx

9.  Under  the  Recruitment  Rules  which  had  been  made  in  exercise of powers conferred by the proviso to Article 309 of  the  Constitution  “member  of  service”  means  an  officer  appointed substantively to a cadre post and includes in case of  a direct appointment an officer on probation or an officer who  having  successfully  completed  his  probation  awaits  appointment  to  a  cadre  post.  In  case  of  an  appointment  by  transfer  an  officer  who  is  on  probation  or  who  having  successfully completed the probation awaits appointment to a  cadre post.

10. Under Rule 6 of the Recruitment Rules, recruitment to the  service in the cadre post could be made both by way of direct  appointment  as  well  as  by promotion  in  the proportion  from  different  sources mentioned in the said Rule. Sub-rule (3) of  Rule  6  authorises  appointment  to  a  cadre  post  as  stopgap  

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arrangement from sources other than the allotted source when a  candidate from the allotted source is not available from sources  1  and  3,  but  such  appointee  is  liable  to  be  reverted  to  his  original  cadre  when  a  candidate  from the  allotted  source  is  available  and the  period  of  service  rendered  by such person  shall not be reckoned for the purpose of his seniority.

11. Sub-rule (4) of the Rule thus enables the State Government  to  fill  up  a  short-term  vacancy  in  the  exigencies  of  public  service after recording reasons for a period not exceeding six  months  in  each  case,  without  resorting  to  the  select  list  prepared under Rule 9. 12. Under Rule 8 appointment to the service has to be made by  way of direct recruitment strictly in the order of merit indicated  by the Public Service Commission depending upon the number  of vacancies available in the cadre.”

14. In that case also, sub-Rule 3 of Rule 6 and sub-rule (4) of Rule 6 are of  

relevance.  The High Court  was clearly wrong  in saying that the appointment  

was  made de hors the Rules. In Ram Ganesh Tripathi and Ors. V. State of U.P.  

and Ors. (1997 (1) SCC  621  at para 7) it was stated as follows:

“7. Rule 21-A provides for regularisation of service of ad  hoc employees by treating them as persons appointed in  the  service  on  the  date  of  their  regularisation.  Rule  9  provides that a person appointed under that rule shall be  entitled to seniority only from the date of appointment  after  selection  in  accordance  with  the  said  Rules  and  shall,  in  all  cases,  be  placed  below  the  employees  appointed  in  accordance  with  the  procedure  for  direct  recruitment  prior  to  the  appointment  of  such  persons  under those Rules. In view of these statutory Rules, the  

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Government could not have treated the respondents and  other ad hoc employees whose services were regularised  on  17-5-1985  as  persons  regularly  appointed  from an  earlier  date.  Nor  could  the  Government  have  counted  seniority from an earlier date either for promotion to the  higher post or for the purpose of giving selection grade.”

15. There  is  another  hurdle  on the  way of  the writ  petitioners.  When the  

order of regularization was passed, according to learned counsel for the writ  

petitioners-respondents  the initial appointment was a substantive appointment.  

If  that  was  the  position,  there  was  need  to  take  the  proficiency  test  which  

undisputedly all the respondents have taken. If  initially the appointment was a  

substantive  appointment,  the  respondents-writ  petitioners  could  have  

challenged   when   the  order  of  regularization  was  passed.  There  was  no  

challenge to the order of regularization and benefits therefrom and there was no  

challenge  to the order of regularization in any of the cases. If the plea of the  

respondents-writ petitioners is accepted it would mean that in their cases the  

regularization was done long back. There was no challenge at the relevant point  

of time. Therefore, the belated approach only for the sake of getting advantage  

of ad hoc or work charge service cannot be countenanced. The present stand  

that  the initial  appointment  was   substantive  appointment  is  contrary to  the  

factual position because  in each case the  proficiency test  was undertaken  and  

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the appointment letter shows that the appointment was  till selected candidates  

join.  

16. Additionally,  even  if  the  proficiency  test  is  passed  the  question  of  

eligibility is  of relevance, “when the vacancy occurs”.  So far as daily wage  

services are concerned there is no scale of pay and the lowest figure scale of  

pay has to be given.  According to fundamental Rule 9(4), ‘cadre’ means the  

strength  of  a  service  or  part  of  service  sanctioned  as  a  separate  unit.  (See  

Chakradhar Paswan v. State of Bihar (1988 (2) SCC 214).

17. In order to become  “a member  of service” candidate must   satisfy four  

conditions,  namely  (i) the appointment must be in a substantive capacity; (ii)  

to a post in the service i.e. in a substantive vacancy; (iii) made according to  

rules; (iv)  within the quota prescribed for the source.   

18. Ad hoc appointment is always to a post but not to the cadre/service and  

is also not made in accordance with the provisions contained in the recruitment  

rules for regular appointment.  

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19. Although  the  adjective  ‘regular’  was  not  used  before  the  words  

‘appointment  in  the  existing  cadre/service’  in  para  3  of  the  G.O.  dated  

25.1.1992 which provided for selection pay scale the appointment mentioned  

there is obviously a need for regular appointment made in accordance with the  

Recruitment Rules. What was implicit in the said paragraph of the G.O when it  

refers   to  appointment  to  a  cadre/service  has  been  made  explicit  by  the  

clarification dated 3.4.1993 given in respect of point No.2.  The same has been  

incorporated in para 3 of the G.O. dated 17.2.1998.  

20. Rules 23,  27 and 28 of Ministerial Service Rules read as under:

“23.  Appointment  to  the  Service.-, (1)  Subject  to  the  provisions of rules 6, 6A, 6B and 6C, except in respect of the  posts of Stenographers the Appointing Authority shall appoint  candidates who stand highest in the order of merit in the list  prepared under rule 22, provided that he is satisfied after such  enquiry as may be considered necessary that such candidates  are suitable in all other respects for such appointment:

Provided  that  subject  to  the  provisions  of  rule  6,  the  Appointing  Authority shall  appoint  candidates  to  the  post  of  Stenographers from the list  prepared under sub-rule (2-A) of  rule 22 provided that he is satisfied after such enquiry as may  be considered necessary that such candidates are suitable in all  other respects for such appointment.

(2) Notwithstanding anything contained in rule 7 the persons  appointed temporarily as Lower Division Clerk up to 7.11.75.  who have been continuously holding such posts or higher posts  

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shall be deemed to have been appointed regularly on temporary  basis  provided  they  fulfil  other  conditions  prescribed  in  the  Rules. They shall be eligible to be appointed substantively as  Lower Division Clerks according to the date of their temporary  appointment  and  on  occurrence  of  permanent  vacancies  and  their work being found satisfactory:

Provided  that  a  person  working  temporarily  as  Lower  Division Clerk whose work is not found satisfactory shall  be  liable to be removed from service.

(i)  by  giving  him  one  month's  notice  if  he  has  served  temporarily in connection with the affairs on the State for less  than three years; and

(ii) by following the procedure as laid down in the Rajasthan  Civil  Services  (Classification,  Control  and  Appeal)  Rules,  1958,  if he has served for more than three years.  All  person  appointed  temporarily  as  Lower  Division  Clerks  after  31-3- 1978 shall be required to seek regular recruitment through the  Competitive examination as prescribed in the Rules.

(3) Notwithstanding anything contained in rule 7, the persons  who were  appointed  temporarily,  in  connection  with  the  general strike in accordance with the orders/instructions issued  by the State Government and were holding the posts of Lower  Division Clerks on 27.11.1975 and, who have not passed the  prescribed test  conducted by the Appointing Authority under  the rules applicable to them at the time of their  appointment  shall be given one more chance to pass the prescribed test in  accordance  with  the  rules  applicable  to  them before  coming  into  force  of  the  rules  amended  Vide  Notification  No.F.2(45)DOP/  B-1/72,  dated  7.11.1975  published  in  the  Rajasthan  Rajpatra,  dated  27.11.1975,  for  being  appointed  substantively as Lower Division Clerks according to the date of  their  temporary  appointment  on  occurrence  of  permanent  vacancies provided that the service of persons who, fail to pass  the said test to be held by the Appointing Authority shall be  liable to be terminated by giving one month's notice or pay and  

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allowances in lieu thereof, if they have served temporarily in  connection with the affairs of the State for less than three years;  and three months notice of pay and allowances in lieu thereof if  they have served temporarily in connection with the affair of  the State for more than three years."

(4)Notwithstanding  anything  contained  in  rule  5,  all  persons  working  as  Lower  Division  Clerk  during  the  period  from  8.11.1975  to  31.3.1978  on  ad-hoc  basis  and  who  could  not  appear in or pass the competitive/qualifying examination held  by the Commission as yet, shall  on availability of permanent  vacancies, be made permanent subject to the condition that they  pass  a  Performance.  Test  conducted  by  the  Appointing  Authority in accordance with the syllabus prescribed in Part-V  of Schedule-II. Such persons shall be allowed three chances to  pass the said test.

(5) Notwithstanding anything contained in Rule 5, all persons  working  as  Lower  Division  Clerk  during  the  period  from  1.4.1978  to  31.3.1980  on  ad  hoc  basis  and  who  could  not  appear in or pass the competitive/qualifying examination held  by the commission  as yet,  shall  on availability of permanent  vacancies, be made permanent subject to the condition that they  pass a performance test conducted by the Head of Department  concerned in accordance with the syllabus prescribed in Part IV  of Schedule-II. Such persons shall be allowed three chances to  pass the said test:

Provided  that  if  a  person  fails  to  pass  the  said  test  in  three chances he shall be liable to be removed from the services  :

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(i) by  giving  him  one  month's  notice,  if  he  served  temporarily in connection with the affairs of the State for less  than three years, and

(ii) by allowing procedure as laid down in Rajasthan Civil  Services (Classification, Control and Appeal) Rules, 1958, if he  has served for more than three years.

(6) Notwithstanding anything contained in Rule 5, all persons  working  as  Lower  Division  Clerks  during  the  period  from,  1.4.1980  to  31.12.1984  on  urgent  temporary  basis  and  who  have  not  passed  the  competitive  examination  held  by  the  commission as yet shall on availability of permanent vacancies  be  made  permanent  subject  to  the  condition  that  they  pass  qualifying  examination  conducted  by  the  Commission  in  accordance with syllabus prescribed in Part-IV of Schedule-II.

Provided that the Commission shall not recommend any  candidate who has failed to obtain a minimum of 35% marks in  each  of  the  compulsory  and  optional  papers  in  the  Lower  Division Clerks’ Examination;

Provided  further  that  if  a  person  fails  to  pass  the  said  examination his services shall be terminated on the expiry of 30  days from the date of receiving list of successful candidates by  the  Deputy  Secretariat  to  the  Government,  Department  of  Personnel and Administrative Reforms (B-I) Department.

(7) Notwithstanding anything contained in rule 5, all persons  working  as  Lower  Division  Clerks  during  the  period  from  1.4.80 to 31.12.84 on urgent temporary basis and who have not  passed or appeared in the qualifying examination conducted by  the Commission under sub-rule (6) of rule 23 on availability of  permanent vacancy be made permanent subject to the condition  that they pass a performance test conducted by the Appointing  Authority within a period of three years in accordance with the  provisions  of  the  rules.  Such  persons  shall  be  allowed  three  

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chances to pass the said test to be availed within a period of  three years;

Provided that if a person fails to pass the said test in three  chances to be availed within a period of three years he shall be  liable to be removed from services.

(8) Notwithstanding anything contained in rule 5 handicapped  persons appointed on the post of L.D.C. during the period from  1.4.80 to 31.3.88 shall on availability of permanent vacancy be  made permanent  by the  Appointing  Authority  on  their  work  being satisfactory.

(9) Notwithstanding anything contained in rule 5, all persons  appointed as L.D.Cs. on ad-hoc basic or on daily wage basis during the period from 1.1.85 to 31.3.90 and are still working  as such on the date this amendment comes into force shall be  appointed on regular basis on availability of vacancy subject to  the condition that they pass a performance test conducted by  the  Appointing  Authority  within  a  period  of  three  years  in  accordance with the provisions of the rules. Such persons shall  be allowed three candidates to pass the said test to be availed  within a period of three years;

Provided that if a person fails to pass the said test in three  chances to be availed within a period of three years, he shall be  liable to be removed from services.

27. Appointment to the Service:- Appointment by promotion  to the posts in the services, specified in the Schedule appended  with these Rules, shall be made by the Appointing Authority on  the  occurrence  of  the  vacancies  as  determined  under  rule  8  from amongst the persons selected under Rules 25 and 26, as  the case may be.

28.  Urgent  temporary  appointment:-  A  vacancy  in  the  service which cannot be filled in immediately either by direct  recruitment or by promotion under the rules may be filled in on  

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urgent temporary basis “by the Government or by the authority  competent  to  make  appointments"  as  the  case  may  be,  by  appointing in an officiating capacity thereto an officer eligible  for  appointment  to  the  post  by  promotion  or  by  appointing  temporarily thereto a persons eligible for direct recruitment to  the services, where such direct recruitment has been provided  under the provisions of these Rules:

Provided that such an appointment will not be continued  beyond a period of one year without referring the case to the  Commission  for  concurrence  where  such  concurrence  is  necessary, and shall be terminated immediately on its refusal to  concur.

Provided further that in respect of the service or a post in  the service for which both the above methods of recruitment  have  been  prescribed,  the  Government  or  the  authority  competent to make appointment, as the case may be shall not,  save  with  the  specific  permission  of  the  Government  in  the  Department  of  Personnel  in  the  case  of  State  Services  and  Government  in  the  Administrative  Department  concerned  in  respect of other services, till they temporary vacancy against the  direct  recruitment  quota  by  a  whole-time  appointment  for  a  period exceeding three months otherwise than out of persons  eligible  for  direct  recruitment  and  after  a  short-term  advertisement.

(2)  In  the  event  of  non-availability  of  suitable  persons  fulfilling  the  requirements  of  eligibility  for  promotion,  Government may not withstanding the condition of eligibility  for  promotion  required  under  sub-rule  (1)  above,  lay  down  general instructions for grant of permission to fill the vacancies  on  urgent  temporary  basis  subject  to  such  conditions  and  restrictions regarding pay and other allowance as it may direct.  Such  appointments shall however be subject to concurrence of  the Commission as required under the said sub rule."

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21. The High Court failed to appreciate that the Recruitment Rules made a  

distinction between appointments made to the cadre/service in accordance with  

the relevant Recruitment Rules which are regular and appointments made de  

hors the regular Recruitment Rules which are ad hoc.  

22. So far as the dismissal  of some special leave petitions summarily it  is  

made clear that, it does not affect the jurisdiction of the Supreme Court to grant  

special leave  to appeal and allow the same. It is well settled that a decision  

which is per incuriam is not ‘law’ declared in terms of Article 141 to have a  

binding effect. (See  Prabhakar Rao v.  State of A.P. (1985 Supp 2 SCR537),  

State of Maharashtra v. Digambar (1995 (4) SCC683), Union of India v. K.N.  

Sivadas (1997 (7) SCC 30),  State of  U.P. v.  Synthetics  and Chemicals  Ltd.  

(1991  (4)  SCC  139)  and  Punjab  Land  Development  and  Reclamation  

Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682).    

23. Apart from Haryana Veterinary case (supra)  the position in law as stated  

in State of Punjab v. Ishar Singh (2002 (10) SCC 674) and State of Punjab v.  

Gurdeep Kumar ( 2003 (11) SCC 732) clearly lay down that while reckoning  

the required length of service the period of ad hoc service has to be excluded. It  

is  relevant  to note that  the first  selection scale of pay was excluded several  

25

years back on completion of 9 years of service subsequent  to regularization.  

After long lapse of time i.e. after nearly 8 years it was not open to be canvassed  

that the second selection scale of pay ought to be granted after the concerned  

employees  having  put  in  18  years  of  service  from  the  date  of  ad  hoc  

appointment.

24. Above being the position the appeals and transfer petitions deserve to be  

allowed which we direct.  

Civil  Appeal        /09  @ SLP (C) 25651 of 2005

25. It is a case of the respondent in the present case that though his case was  

heard alongwith other cases which are disposed of today, in the instant case the  

test was in the year 1981. The regularization was in 1982 and first selection  

grade was given in 1991 and the second was given in 2000. That being so, the  

respondent is entitled to the benefit which the Government has not granted. The  

State is directed to consider this question immediately.   

26. Appeal is disposed of.  

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………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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