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PETITIONER: STATE OF TAMIL NADU AND ANR. ETC.

       Vs.

RESPONDENT: E. PARIPOORNAM AND ORS.

DATE OF JUDGMENT19/08/1991

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAMASWAMI, V. (J) II YOGESHWAR DAYAL (J)

CITATION:  1992 AIR 1823            1991 SCR  (3) 618  1992 SCC  Supl.  (1) 420

ACT:     Tamil   Nadu  State  and  Subordinate  Services   Rules, 1955--Rules 35(1),  10(a)(i)(1), 22, 23(a)--lnter-se senior- ity--Determination--Temporary service--Whether counted.   Civil  Service--Inter-se  seniority--Determination--Tempo- rary service--- Whether counted.     Tamil   Nadu  State  and  Subordinate  Services   Rules, 1955--Rules10(a)(i)(1),  23(a)--Temporary  service--Benefits available indicated.

HEADNOTE:    The  Government appointed temporary junior  professors  in different  law colleges in the State under Rule  10(a)(1)(1) of the TamilNadu State and Subordinate Services Rules,  1955 during 1971-1982.     In  1979  the State Public  Service  Commission  invited applications  for regular appointment of junior  professors. The  temporary junior professors and others applied for  the posts. The Commission selected 25 candidates out of whom  21 were  already  working as temporary  junior  professors.  On 16.8.1983, the selected candidates were arranged in the list called "approved list" in the order of merit prepared by the Commission   which  was  approved  by  the   Government   on 9.12.1983.     On 27.6.1985 the State Government regularised the  serv- ices of the 21 junior professors with effect from ’the dates of original appointments as temporary junior professors.     Some of the junior professors were promoted on 10.9.1986 and appointed as professors. The respondents challenged that promotion  before the. High Court contending that  once  the temporary  services  were regularised  retrospectively  with effect from the date of entry in the.. service, the seniori- ty  should he reckoned by glvlng the benefit of  regularised service notwithstanding the ranking in the approved list. The  High  Court allowing the writ  petitions  directed  the Govern- 619 ment to make a proper order of promotion in the light of the views expressed in the judgment, against which appeals  were made in this Court. Allowing the appeals, this Court,

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   HELD: 1. The order of regularisation of the services  of the candidates expressly States that the inter-se  seniority of  the candidates would be in accordance with the  rankings in the approved list prepared by the  Public Service Commis- sion  and  will not be affected in any way by  the  date  of regularisation of services. When the order of regularisation of  temporary  service itself denies such  service  for  the purpose  of  determining seniority, the Court  cannot  count that service for the purpose of seniority. [625B-C]     2. Since the parties in these cases appeared for  selec- tion  before the Public Service Commission for  regular  re- cruitment as Junior professors, the list of approved  candi- dates prepared by the Public Service Commission in the order of merit and accepted by the Government should be the  basis for  the determining inter-se seniority. It is not  open  to the parties to claim that their temporary service aS  junior professors  upon  regularisation should be counted  for  the purpose of determining the seniority in the cadre. [625D-E]     3.  Rule  10(a)(i)(1) provides for making  of  temporary appointments.  Such appointments are made otherwise than  in accordance  with the procedure prescribed under  the  Rules. [625H-626A]     4.  In the instant case, the respondents were  appointed temporarily and otherwise than in accordance with the Rules. They  were later selected along with others for  direct  re- cruitment  by the Public Service Commission. They  were  not entitled  to count the temporary service for seniority.  The services  rented  by the applicants under  Rule  10(a)(i)(1) cannot  be considered for the purpose of seniority  as  such appointment is a matter of stop-gap, emergency or fortuitous arrangement. Even though their temporary services have  been regularised,  since  regularisation  was  only  for  limited purposes. [626A-C]     A.P.M.  Mayakutty  etc. v.  Secretary,  ’Public  Service Department etc., [1977] 2 SCR 937 at 942, followed.     5. The services rendered in the temporary post is avail- able  either for earning increments or for  commencement  of probation. [625E-F] 620

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  1339-40 of 1988.      From  the  judgment dated 7.7.1987 of  the  Madras  High Court in W.P. Nos. 9781 and 10545 of 1986.     G.L. Sanghi, P.P. Rao, R. Mohan, R. Perumal, V. Krishna- murthy,  M.N. Krishnamani, V. Sekhar, K.V. Vishwanathan,  T. Raja,  S.R.  Setia, P. Chaudhary, A. Mariarputham  and  M.A. Krishnamurthy for the appearing parties. The Judgment of the Court was delivered by     K.  JAGANNATHA  SHETTY, J. In these appeals  by  special leave, the legality of the judgment of the Madras High Court dated 7 July 1987 quashing the promotions made to the  cadre of professors in law colleges in the State of Tamil Nadu has been called into question.     The appeals arise in the following circumstances: During the  period  from  197 1 to 1982  the  Government  appointed temporary junior professors in different law colleges in the State. The appointments were made under Rule 10(a)(i)(1)  of the  Tamil Nadu State and SubOrdinate Services  Rules,  1955 (Viz.  The. Preliminary and The General Rules)  (hereinafter called  ’the Rules’). In 1979 the State Public Service  Com- mission  invited  applications for  regular  appointment  of

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junior  professors.  The  temporary  junior  professors  and others applied for the posts. The Public Service  Commission selected  25 candidates out of whom 21 were already  working as temporary junior professors. The selected candidates were arranged  in the list called "approved list’.’ in the  order of  merit. The list was prepared by the Public Service  Com- mission on 16 August 1983. It was approved by the Government ’on  9 December 1983. On 27 June 1985 the  State  Government made  an order regularising the services of those 21  junior professors. Their services were regularised with effect from the  dates  of  original appointments  as  temporary  junior professors.     On 10 September 1986 some of the junior professors  were promoted  and appointed as professors in the  law  colleges. That. promotion was challenged before the Madras High  Court on  the ground that the claim of the seniors has been  over- looked’  It, was urged before the High Court that  once  the temporary  services  have been  regularised  retrospectively with  effect  from  the date of entry in  the  service,  the seniority should be reckoned by giving the benefit of  regu- larised service 621 notwithstanding the ranking in the approved list prepared by the Public Service Commission. The High Court accepted  that plea  and queshed the promotion of professors  and  directed the  Government to make a proper order of promotion  in  the light of the views expressed in the judgment.     The  correctness of the judgment of the High  Court  has been  assailed in these appeals. We must first  outline  the necessary  statutory  provisions  bearing  on  the  question raised. Section 10(a)(i)(1) provides as follows:               "10. Temporary appointments:                (a)(i)(1) Where it is necessary in the public               interest  owing  to  an  emergency  which  has               arisen to fill immediately a vacancy in a post               borne  on  the cadre of a  service,  class  or               category  and  there would be undue  delay  in               making  such  appointment in  accordance  with               these  rules  and the Special Rules,  the  ap-               pointing  authority may temporarily appoint  a               person, otherwise than in accordance with  the               said rules.               Rule 22 so far as relevant reads:               "Reservation  of Appointments--Where the  Spe-               cial  Rules  lay down that  the  principle  of               reservation of appointments shall apply to any               service,  class  or  category,  selection  for               appointment  thereto shall with effect on  and               from the 7th June 197.1, in cases such  selec-               tion is made by the Commission, and 8th Novem-               ber  1971,  in  other cases, be  made  on  the               following basis--               (a) The unit of selection for appointment, for               the  purpose of this rule, shall be  one  hun-               dred, of which ,eighteen shall be reserved for               the Scheduled Castes and the Scheduled  Tribes               and  thirty-one  shall  be  reserved  for  the               Backward  Classes and the remaining  fifty-one               shall be filled on the basis of merit.               (b)  The  claims Of members of  the  Scheduled               Castes and the Scheduled Tribes and the  Back-               ward Classes shall also be considered for  the               fifty-one appointments, which shall be  filled               on the basis of merit; and where a candidate

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             622               belonging  to  a  Scheduled  Caste,  Scheduled               Tribe  or Back’ ward Class is selected on  the               basis  of merit, the number of posts  reserved               for  the  Scheduled Castes and  the  Scheduled               Tribes  or  for the BackWard Classes,  as  the               case may be, shall not in any way be affected.                XXXXX      XXXX      XXXX               Rule 23, so far. as material, is as follows:                "23(a)(i)  Date of Commencement of  probation               of persons first appointment temporarily--If a               person  appointed  temporarily  either   under               sub-rule  (a) or sub-rule. (d) of rule  10  to               fill a vacancy in any service, class or  cate-               gory  otherwise  than in accordance  with  the               rules  governing  appointment  thereto,   such               vacancy being a vacancy which may be filled by               direct recruitment, is subsequently  appointed               to  the service, class or category in  accord-               ance  with  the rules, he shall  commence  his               probation;  if  any, in such  category  either               from the date of his first temporary  appoint-               ment  or  from such subsequent  date,  as  the               appointing authority may determine.               XXXXX       XXXXX      XXXXX               Provided  that on the date so determined,  the               person  possesses all the qualifications  pre-               scribed for appointment to the service,  class               or category, as the case may be.               (ii)  A person who commences  probation  under               clause  (i)  shall also be  eligible  to  draw               increments in the time scale of pay applicable               to  him from the date of commencement  of  his               probation. Where commencement of probation  is               ordered  from a date earlier than the date  of               the order and if this has not been enabled  by               relaxation  of any rule, he shall draw  incre-               ments, including arrears, in the time-scale Of               pay applicable to him from such’ earlier date.               The  appointing  authority  shall  include   a               provision to this effect while issuing  orders               in all such cases.               Rule 35 omitting immaterial words, is in these               terms:               "35(a) The seniority of a person in a service,               class or cate-               623                  gory  or  grade shall unless  he  has  been               reduced  to a lower rank as a  punishment,  be               determined by the rank obtained by him in  the               list  of approved candidates drawn up  by  the               T.N.P.S.C.  or other appointing authoritY,  as               the case may be, subject to the rule of reser-               vation.  where  it applies. The date  of  com-               mencement  of his probation shall be the  date               on  which  he joins duty irrespective  of  his               seniority."     , It is under these Rules the Public Service Commission invit- ed applications for selecting candidates for direct recruit- ment to the cadre of Assistant professors in Law. The Public Service Commission prepared the list of selected  candidates by  following  the reservation provided under rule  22.  The list  was  approved  by the State  Government.’  Rule  35(a) states that seniority of a person’ be determined by the rank ’obtained by him in the list of approved candidates drawn by

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the Public Service Commission subject to rule of reservation where it applies.     The contention urged for the respondents, is. that since their  temporary service as junior professors  were  regula- rised, the regularised service should count for the  purpose of determining, their seniority and not the rankings in  the select  ,list  approved by the Government.  We  find  little substance  in  it. The order of regularisation is  in  these terms:               "ORDER             DATED 27.6.1985                           In  G.O   Ms. No.  2288  Education               dated  9.12.1983 the Government  approved  the               selection made by the Tamil Nadu Public  Serv-               ice Commission of the 25 candidates  mentioned               therein for appointment by direct  recruitment               as  Junior Professor in the Tamil Nadu  ’Legal               Educational Service- These 25 candidates  were               appointed  temporarily  as from  their  taking               charge  ’in G.O. Ms. No. 897  Education  dated               11.7. 1984.               2.  The  Government have however,  decided  to               appoint them, regularly with effect from,  the               dates  on  which,  they  were  declared  fully               qualified to hold the post of Junior professor               in  the  Law Colleges in Tamil Nadu  prior  to               their selection by the Tamil. Public. Service.               Commission and appointment as Junior  ,Profes-               sors,in  Law Colleges with reference to  their               selection.  The Government accordingly  direct               that  the services of the 21 individuals  men-               tioned in               624               the  Annexure to this order as Junior  Profes-               sors  in  the  Tamil  Nadu  Legal  Educational               Service,  be  regularised  with  retrospective               effect from the dates noted against them.               3.  The  inter-se seniority of the  21  candi-               dates.indicated in the annexure is in  accord-               ance  with  the seniority fixed by  the  Tamil               Nadu  Public Service Commission. The  inter-se               seniority position will not be affected in any               way with reference to the dates ’of  regulari-               sation mentioned in column 3 of the annexure.               4.  Under Rule 23(a)(ii) of the General  Rules               for State and Subordinate Services, the incum-               bents  are  eligible for increments  from  the               date of their regularisation as they are fully               qualified  to hold the post on that date.  The               increments  already  sanctioned to  them,  for               their services as temporary. junior professors               prior to regular appointment, is ratified.               XXXXX          XXXXX ’ ’     The first paragraph of the order refers to the selection of  25 candidates by the Public Service Commission  for  ap- pointment  as  Junior Professors in the’  law  colleges  and their  appointment with effect from their’  taking  charges. The second paragraph of the order deals with the regularisa- tion  of the services of/21 candidates out of 25  appointed. The  Government directed that the services of the 21  Junior Professors specified in the order be regularised with retro- spective  effect  from the date noted against them.  In  the third paragraph it is stated that the inter-se seniority  of the 21 candidates is in accordance with the seniority  fixed by the Public Service Commission and the inter-se  seniority position  will not be affected in any way with reference  to

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the dates of regularisation of their services. The paragraph four of the order deals with the rights of the candidates to draw increments under rule 23(a)(ii) in the service rendered as temporary Junior Professors.     The High Court has stated that Rule 35(a) could not have been  properly  invoked by the State  Government  after  the regularisation  of  :he services of the  candidates  and  it would  be against the very concept of order  of  regularisa- tion.  It  has been pointed out that  by  regularisaion  the period of temporary service has been converted into a period of regular service and a deeming, fiction is introduced that the  candidates whose services have been regularised  retro- spectively must be 625 treated  for all purposes as being in regular  service  from the respective dates of regularisation.     In  our opinion, the view. expressed by the. High  Court not  only  runs counter to the terms of the  order  of  the. regularisation  but  also  is  inconsistent  with  Statutory principle of determining seniority under Rule 35(a). In  the first place the order of regularisation of the services  ’of the candidateS expressly states that the inter se  seniority of, the candidates would be in accordance with the  rankings in the approved list prepared by the Public Service  Commis- sion  and  will not be affected in any way by  the  date  of regularisation  of services. When the’ order of  regularisa- tion of temporary service itself denies such service for the purpose  of  determining seniority, the Court  cannot  count that  service for the purpose of seniority.  Secondly,  Rule 3.5(a)  provides for determining the inter-se  seniority  of the candidates selected by the Public Service Commission. It states that the seniority of a person in a service, class or category  or  trade shall be determined unless he  has  been reduced  to  a lower rank as a punishment, by the  rank  ob- tained  by him in the list of approved candidates  drawn  by the Public Service Commission or other appointing  authority as  the case may be’. Since the parties in these  cases  ap- peared  for selection before the Public  Service  Commission for  regular recruitment as Junior Professors, the  list  of approved candidates prepared by the Public Service  ’Commis- sion  in the order.of merit and accepted by  the  Government should be the basis for determining their inter-se  seniori- ty. It is not open to the parties to claim that their tempo- rary service as Junior Professors upon regularisation should be  counted for the purpose of determining the seniority  in the cadre. There is no rule supporting such contention.  The services rendered in the temporary post is available  either for  earning  increments or for commencement  of  probation. That  would  be clear from Rule 23(a). Consistent  with  the Rule  23(a), the Government in the order  of  regularisation has directed that the incumbents are eligible for increments from  the  date of their regularisation as  they  are  fully qualified  to  hold the post on that  date.  The  increments already  sanctioned to them during their services as  tempo- rary Junior Professors prior to.regular appointment has been ratified  by the said order. The High Court was  plainly  in error  in  ignoring the statutory Rules and  the  terms  and conditions of the order of regularisation of services.     Apart from that, Rule 10(a)(i)(1) provides for making of temporary  appointments when it is necessary in  the  public interest to do so owing to an emergency which has arisen for filling  a vacancy immediately. Such appointments  are  made otherwise than in accor- 626 dance with the procedure prescribed under the Rules. In  the

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instant case the respondents were appointed temporarily  and otherwise  than  in accordance with ’the  Rules.  They  were later selected along with others for direct  ,recruitment.by the  Public  Service CommisSion. They were not  entitled  to count  their  temporary  service for  seniority.  In  A.P.M. Mayakutty etc, v. Secretary, Public Service Department etc., [1977]  2 SCR 937 at 942 this Court observed that the  serv- ices  rendered  by  the applicants  under  Rule  10(a)(i)(1) cannot  be considered for the purpose of seniority  as  such appointment is a matter of stop-gap, emergency or fortuitous arrangement.  The  present case cannot’ be an  exception  to this  principle  even though their temporary  services  have been regularised, since regularisation ’was only for limited purposes.     In any view of the matter the decision of the High Court cannot be sustained.     In  the result the appeals are allowed and the  impugned judgment is set aside with no order as to costs. V.P.R.                                      Appeals allowed.                                 1 ? 627