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PETITIONER: STATE OF WEST BENGAL AND ORS.  ETC.  ETC.

       Vs.

RESPONDENT: AGHORE NATH DEY AND ORS.  ETC.  ETC.

DATE OF JUDGMENT02/04/1993

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SAWANT, P.B. KASLIWAL, N.M. (J)

CITATION:  1993 SCR  (2) 919        1993 SCC  (3) 371  JT 1993 (2)   598        1993 SCALE  (2)365

ACT: Civil Services. West Bengal Engineering Services Rules 1959. Rules 4,9,10-12--Overseer estimators appointed Sub Assistant Engineer  appointed temporary Assistant Engineers on ad  hoc basis--Claim  to  seniority based on direct  recruitment  as Assistant  Engineer  or  as  promotee  from  cadre  of   Sub Assistant   Engineer--Tenability   of--period  of   ad   hoc appointment whether be taken into account for seniority.

HEADNOTE: By Notification No. 94 dated 20th August, 1959 the  Governor of  West Bengal made Rules under the proviso to Article  309 of   the  Constitution  of  India  for  the  regulation   of recruitment to the Engineering Services under the Department of Works and Buildings of the State Government. Under  these  Rules, recruitment to the permanent  posts  of Assistant Engineers was to be made under Rule 9, while  Rule 10 governed recruitment to the temporary posts of  Assistant Engineers.   Rule 11 provided for emergency  appointment  by advertisement and interview through the State Public Service Commission,  on  the  basis  of  a  competitive  examination conducted  by  the  Service  Commission.   Accordingly,  any appointment  to a permanent or temporary post  of  Assistant Engineer,  which was not made in accordance with Rule 9,  or 10  or  11  was, therefore, not  in  accordance  with  these Service Rules. The respondents in the appeals were petitioners in the  writ petitions in the High Court.. They were duly appointed  Sub- Assistant   Engineers  who  were  earlier  called   Overseer Estimators  and  though  Initially  diploma  holders  having obtained the prescribed degree were eligible for appointment as  Assistant  Engineers.   They  were  appointed  temporary Assistant Engineers on ad hoc basis, initially for a  period of six months in the PWD 1974 to 1976 and in the  Irrigation and Waterways Department 920 between  1972 to 1978.  They claimed seniority on the  basis of  their  direct  recruitment  to  the  post  of  Assistant Engineer,  and not as promotee from the next below cadre  of Sub-Assistant Engineers In the promotion quota specified for

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them  in  the Rules.  Their initial ad hoc  appointment  was extended  periodically  upto  26.2.1980,  and  during   this period, several opportunities were given to these persons to appear  before the Public Service Commission to satisfy  the condition  attached to the ad hoc appointment, but  none  of them complied with the requirement, declining throughout  to appear  before  the Public Service  Commission.   The  State Government requested the Public Service Commission to permit regularisation of the services of these ad hoc appointees as Assistant  Engineers,  without being  selected  for  regular appointment by the Public Service Commission but the  Public Service  Commission by several letters turned down that  re- quest.   The Government, finally took the decision  on  26th February,  1980  to regularise these  persons  as  Assistant Engineers,  and, consequently took three simultaneous  steps on  26-2-1980  viz.  (1) the requirement  in  the  rules  of consultation  with  the  Public  Service  Commission   being dispensed  with,  (2)  absorbtion  as  temporary   Assistant Engineers and (3) a service rule under Article 309 providing for  seniority as temporary Assistant Engineers with  effect from  the  same  date i.e. 26-2-1980.  This  statutory  rule clearly  provided, that all persons appointed  regularly  in accordance  with  rules, prior to  26-2-1980,  as  Assistant Engineers would rank above the ad hoc appointees so absorbed with  effect from 26-2-1980 and the  Government  implemented this decision. The  question before the High Court related to the  fixation of  seniority of these Sub Assistant Engineers appointed  ad hoc temporary Assistant Engineers for a specified period  in the PWD and the Irrigation and Waterways Department,  vis-a- vis the direct recruits in the cadre of Assistant  Engineers appointed  regularly  according to rules in  the  department prior to the regularisation of the ad hoc appointees. The  writ petitions were dismissed by a Single Judge of  the High  Court,  but  the  writ appeals  were  allowed  by  the Division  Bench resulting in grant of the relief claimed  by the ad hoc appointees. In  the appeals to this Court by the State of  West  Bengal, and   the  adversely  affected  direct  recruits  who   were respondents  in  the  writ petitions filed  by  the  ad  hoc appointees, it has been urged that the claim of 921 the   respondents   for  seniority  being  given   to   them retrospectively  from  the  date of  their  initial  ad  hoc appointment,  made contrary to the rules, in spite of  their regularisation being made expressly from 26-2-80, is  wholly untenable   and   against  the  decisions  of   this   Court particularly  the  Constitution  Bench  decision  on  Direct Recruit Class II Engineering Officers’ Association and  Ors. v. State of Maharashtra and Ors.,[1990] 2 SCR 900 = [1990] 2 SCC 715, and that the Division Bench of the High Court  com- mitted  an  error in reversing the judgment  of  the  Single judge Bench which had dismissed the writ petitions. The appeals were contested by the respondents by  submitting that the initial ad hoc appointment of the writ  petitioners was made by a mode permissible under the Service Rules, that appointment  was  made  in relaxation of the  rules  by  the Government  which  is  implicit in  the  action  taken,  the initial  ad hoc appointment must, therefore, be  equated  to the  regular appointment made under the Rules, and  on  this equation  there  is  no  justification  for   discrimination between the initial ad hoc appointees and regular appointees coming  in  by direct recruitment thereafter  in  accordance with the rules.  It was further submitted that the case fell squarely  within the ambit of conclusion (B) of the  summary

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In Maharashtra Engineers case. Allowing the appeals, this Court, HELD  : 1. There is no dispute between promotes  and  direct recruits, the claim of the writ petitioners being based only as direct recruits in the Cadre of Assistant Engineers,  and not  as  promotees  from the lower  cadre  of  Sub-Assistant Engineers  to which they had earlier belonged.  The  present is,  therefore,  not  a case of a dispute  relating  to  the surplus  promotees,  who were given promotion  regularly  in accordance with rules, but in excess of the quota fixed  for them  under  the rules.  In the present case, all  the  writ petitioners  are  persons who were given  ad  hoc  temporary appointments  for  a fixed period, which was  extended  from time  to  time till their regularisation on  26-2-1980,  and that too by relaxation of the condition of selection by  the Public Service Commission, which was an express condition of their  ad  hoc  appointment and a  requirement  for  regular appointment  under the Rules.  Assuming the relaxation  made in  their  case by the State Government on 26-2-1980  to  be valid,  they  could be treated as regularly  appointed  only with effect from 26-2-1980 when the 922 relaxation  was  given  to  them,  and  an  order  was  made simultaneously  absorbing  them in the  cadre  of  Assistant Engineers,  also  framing  a rule at  the  same  time  under Article  309 providing for fixation of their seniority  only from that date.  Accordingly, there is no foundation for the claim  that  they could be treated at par  with  the  direct recruits, regularly appointed prior to 26-2-1980. [934 C-E] 2. Prior to the steps taken by the State Government on 26-2- 1980  for  regularisation, there was no basis on  which  the writ  petitioners could claim to be regularly  appointed  as Assistant  Engineers;  and, therefore, the manner  in  which they  were  regularised, including the mode of  fixation  of their  seniority with effect from 26-2-1980, is decisive  of the  nature  of their regular appointment.   This  alone  is sufficient  to negative their further claim.  They can  make no  grievance  to any part of that exercise, made  only  for their benefit [934 F-G] 3.  The  claim of the writ petitioners (respondents  in  all these  appeals) for treating their entire period of  service prior  to  26-2-1980 as regular service for the  purpose  of seniority,  and fixation of their seniority accordingly,  is untenable. 1937-A] 4. Rule It of the 1959 Rules provides for appointments to be made during emergency, and lays down that such  appointments can be made only by advertisement and interview, through the Public   Service  Commission.   Admittedly,   this   express requirement  in  Rule  11  was  not  followed  or  fulfilled subsequently,   and,   therefore,   the   initial   ad   hoc appointments  cannot be treated to have been made  according to  the  applicable rules.  These ad hoc  appointments  were clearly not in accordance with the rules, and were made only as  a  stop-gap arrangement for fixed period,  as  expressly stated in the appointment order itself. [937-C] 5. Conclusions (A) and (B) of the Constitution Bench in  the Maharashtra  Engineer’s case have to be  read  harmoniously, and conclusion (B)  cannot  cover cases which are  expressly excluded by conclusion (A).  It is.     clear           from conclusion  (A) that to enable seniority to be counted  from the  date  of initial appointment and not according  to  the date  of confirmation, the incumbent of the post has  to  be initially,   appointed  ’according  to  the   rules’.    The corollary  set out in conclusion (A), then is,  that  ’Where the initial appointment is only ad hoc and not according  to

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rules  and made as a stop- gap arrangement, the  officiation in such posts cannot be taken into 923 account for considering the seniority.  The case of the writ petitioners   squarely  falls  within  this   corollary   in conclusion  (A),  which says that the  officiation  in  such posts  cannot  be  taken  into  account  for  counting   the seniority. [935 D-F] 6.  Conclusion  (B) was added to cover a different  kind  of situation,  wherein the appointments are  otherwise  regular except for the deficiency of certain procedural requirements laid  down  by the rules.  This is clear  from  the  opening words  of  the  conclusion  (B),  namely,  if  the   initial appointment is not made by following the procedure laid down by   the   rules  and  the  later   expression   ’till   the regularisation of his service in accordance with the rules’. Conclusion  (B)  must  be  so  read  as  to  reconcile  with conclusion (A). [936-B] 7.  Decision  about  the  nature  of  the  appointment,  for determining  whether  it falls in this category, has  to  be made  on the basis of the terms of the  initial  appointment itself and the provisions in the rules.  In such cases,  the deficiency  in the procedural requirements laid down by  the rules  had to be cured at the first  available  opportunity, without any default of the employee, and the appointee  must continue in the post uninterruptedly till the regularisation of  his  service,  in accordance with the  rules.   In  such cases,  the appointee is not to blame for the deficiency  in the  procedural requirements under the rules at the time  of his  initial appointment.  In such cases also, if  there  be any  delay in curing the defects on account of any fault  of the appointee, the appointee would not get the full  benefit of the earlier period on account of his default, the benefit being  confined  only to the period for which he is  not  to blame.   This  category  of cases is  different  from  those covered by the corollary in conclusion (A) which relates  to appointment  only on ad hoc basis as a stop-gap  arrangement and not according to rules. [936 E-G] 8.  It is, therefore, not correct to say, that  the  present cases  can  fall within the ambit of  conclusion  (B),  even though  they  are  squarely  covered  by  the  corollary  in conclusion (A). [936-H] 9.  There is, therefore, no escape from the conclusion  that the  present  cases fall squarely within the  ambit  of  the corollary in conclusion (A), of, Maharashtra Engineers’ case and,  therefore,  the  period  of ad  hoc  service  of  writ petitioners (respondents) on the post of Assistant  Engineer prior  to 26-2-1980, cannot be counted for  reckoning  their seniority. [937-E] 924 Direct  Recruit Class II Engineering  Officers  ’Association and Ors. v. State of Maharashtra and Ors., [1990] 2 SCR  900 = [1990] 2 SCC 715, explained and followed. [932-D] A. Janardhana v. Union of India & Ors., [1983] 2 SCR 936 and Narender Chadha & Ors. v. Union of India and Ors., [1986]  1 SCR 211, referred to. [932-H]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  3607-11  of 1988. From the Judgment and Order dated 12.7.1988 of the  Calcutta High Court in F.M.A.T. Nos. 2301, 2326 and 2327 of 1986. Tapas  Ray,  Dr. Shankar Ghosh, B. Dutta,  H.K.  Puri,  S.K.

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Nandy, Sushil Kr.  Jain and R.K. Joshi for the Appellants. G.L.  Sanghi,  N.R. Chowdhary, Som Nath Chatterjee  for  the Respondents. The Judgment of the Court was delivered by VERMA,  J.  These  appeals involve  for  decision  a  common question, relating to fixation of seniority of certain  Sub- Assistant  Engineers  appointed ad hoc  temporary  Assistant Engineers  for  a  specified period in the  P.W.D.  and  the Irrigation  and  Waterways Department of the  Government  of West  Bengal, vis-a-vis the direct recruits in the cadre  of Assistant  Engineers appointed regularly according to  rules in  these departments prior to the regularisation of the  ad hoc  appointees.   The  question was raised by  the  ad  hoc appointees who were regularised subsequently, by filing writ petitions  in the Calcutta High Court claiming  revision  of their seniority, reckoned from the date of their initial  ad hoc  appointment.  These writ petitions were dismissed by  a Single  Bench  of the High Court but the writ  appeals  were allowed  by  a  division bench, resulting in  grant  of  the relief  claimed  by  the ad hoc  appointees.   It  is  these judgments, involving the common question of the merit of the claim of the ad hoc appointees for seniority, reckoned  from the  date of their initial ad hoc appointment, in  he  facts and circumstances of the case, which are challenged in these appeals. 925 Civil Appeal No. 3607 of 1988 is by the State of West Bengal while  Civil  Appeal No. 3610 of 1988 is  by  the  adversely affected  direct recruits who were respondents in  the  writ petition filed by the ad hoc appointees in the P.W.D.  Civil Appeal No. 3608 of 1988 is by the State of West Bengal while Civil  Appeal No. 3611 of 1988 is by the adversely  affected direct  recruits who were respondents in the  writ  petition filed  by  the  ad  hoc appointees  in  the  Irrigation  and Waterways  Department.  Civil Appeal No. 3609 of 1988  is  a similar  matter, also relating to the Irrigation and  Water- ways Department. The  material facts are only a few, and may be  stated  with reference  to the P.W.D., pointing out the minor  difference on facts between the ad hoc appointments made in the PWD and Irrigation   and   Waterways  Department,  which   are   not significant on the conclusion reached. In  exercise  of  the powers conferred  by  the  proviso  to Article  309 of the Constitution of India, the  Governor  of West  Bengal  made Rules by Notification No. 94  dated  20th August,  1959  for  the regulation  of  recruitment  to  the Engineering  Services  under  the Department  of  Works  and Buildings of the Government of West Bengal.  In the  present case,   we  are  concerned  with  the  cadre  of   Assistant Engineers, for which the relevant rules are :               "Rule  4:               There  will  be  an examination  held  by  the               Public  Service Commission, West  Bengal,  for               recruitment to posts of Assistant Engineer.  A               certain  proportion  of such posts as  may  be               determined by the Works and Buildings  Depart-               ment  from time to time, will be filled up  by               candidates,  in  order of merit, who  will  be               given  a  higher initial pay of  Rs.  325  per               month  in the time-scale of pay for  Assistant               Engineers.   In order to be eligible for  such               higher initial pay a candidate must secure  66               per  cent or above of the total marks  in  the               said examination.               Rule  9:

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             Recruitment   to   the  permanent   posts   of               Assistant Engineer shall be made as follows 926               (a)Forty  per  cent  of  vacancies  by  direct               recruitment  on the results of  a  competitive               examination  to  be conducted  by  the  Public               Service  Commission, West Bengal as  mentioned               in rule 4 supra:               Qualifications :               (i)A   degree  in  Civil  Engineering   of   a               recognised    University    or    any    other               qualification in Civil Engineering exempting a               candidate  from appearing in Sections A and  B               of  Associate  Membership Examination  of  the               Institute of Engineers (India).               (ii)One   year’s   post   graduate   practical                             training  or  study or  research  or  practica l               engineering experience.               (iii)Age  not  more than 27 years on  the  1st               August  of the year in which  the  recruitment               examination is held.               The age limit shall in the case of  candidates               who have been in the employ of the Central  or               the State Government or of the Damodar  Valley               Corporation   or  any  other  statutory   body               recognised  for the purpose by the  Government               and  are not out of such employment  for  more               than a year on the said date be releasable  to               the   extent  of  the  actual   period   spent               (continuously)   in  such  employment.    This               relaxation of age limit will not be  permitted               to a candidate who had already appeared in the               examination thrice.               No candidate will be allowed to take more than               three chances.               Departmental candidates are’ eligible to apply               provided    they   fulfill    the    requisite               qualifications.               (b)Forty  per cent by selection  from  amongst               directly    recruited   temporary    Assistant               Engineers   who   have  rendered   two   years               satisfactory  service, selection wing made  by               the Public Service Commission, West Bengal. 927               (c)Twenty  per cent by promotion of  confirmed               Overseer Estimators.               Rule  10               Recruitment  to temporary posts  of  Assistant               Engineer shall be made as follows-.-               (a) Eighty per cent of the vacancies are to be               filled by direct recruitment on the results of               a competitive examination referred to in  rule               9(a) above.               (b)  Twenty percent by promotion of  confirmed               Overseer Estimators.               Rule  11               Notwithstanding  anything contained  in  these               rules  the Governor may in case  of  emergency               fill  up vacancies in the posts  of  Assistant               Engineer  both  permanent  and  temporary   by               advertisement   and  interview,  through   the               Public Service Commission, West Bengal.               Rule  12               An Overseer Estimator shall not be promoted as

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             a  temporary Assistant Engineer unless he  has                             rendered 10 years services.  To be eligible fo r               promotion  he  must pass a  written  and  oral               examination  which  will be conducted  by  the               Public  Service Commission, West  Bengal,  and               will  be of the same standard as  Professional               Examination  referred to in Chapter VI of  the               Service (Training and Examination) Rules, West               Bengal,  Overseer  Estimators  who  have  been               confirmed  in their posts and have tendered  8               years’ service including temporary service  in               that  post shall be eligible to sit  for  such               examination, a panel of Overseer Estimator fit               for promotion as temporary Assistant Engineers               shall  be maintained in consultation with  the               Public Service Commission, West Bengal." Under  these  Rules, recruitment to the permanent  posts  of Assistant  Engineers was required to be made under  Rule  9, while Rule 10 governed 928 recruitment  to the temporary posts of Assistant  Engineers. Rule 11 provided for emergency appointment by  advertisement and interview through the Public Service Commission.  It  is clear  from these Rules that appointments to all the  posts, permanent  and  temporary were to be made according  to  the prescribed   procedure,  on  the  basis  of  a   competitive examination conducted by the Public Service Commission;  and even the appointments made in an emergency governed by  Rule 11  were to be made ’by advertisement and interview  through the  Public  Service  Commission’.   Any  appointment  to  a permanent or temporary post of Assistant Engineer, which was not  made  in  accordance  with Rule 9  or  10  or  11  was, therefore, not in accordance with these Rules. The  writ  petitioners  in  all  these  matters  were   duly appointed  Sub-Assistant Engineers who were  earlier  called Overseer  Estimators as described in the Rules,  and  though initially  diploma holders, having obtained  the  prescribed degree,   were   eligible  for  appointment   as   Assistant Engineers.   The  writ  petitioners  (respondents  in  these appeals) were appointed temporary Assistant Engineers on  ad hoc  basis, initially for a period of six months in the  PWD between.  1974 to 1976 and in the Irrigation  and  Waterways Department   between  1972  to  1978.   According  to   writ petitioners  themselves, their claim for seniority is  based on direct recruitment to the post of Assistant Engineer, and not  as promotee from the next below cadre of  Sub-Assistant Engineers in the promotion quota specified for them, in  the Rules.  It is, therefore, the claim of the writ  petitioners for  seniority  from  the  date  of  their  initial  ad  hoc appointment, as direct recruits, and not as promotees in the promotion  quota,  which has to be considered.  The  ad  hoc appointment  of  all the writ petitioners was  in  identical terms  and, therefore, it is sufficient to refer  merely  to the  relevant part of one such notification dated 10th  May, 1974,  as  illustrative  of  the  nature  of  their  ad  hoc appointment.   The relevant part of the notification  is  as under               "The  Governor  is  pleased  to  appoint   the               following   Sub-Assistant  Engineers  of   the               P.W.D. now posted in the  Directorates/offices                             mentioned  against  each as  tempy.   Assistan t               Engineers  in  the  West  Bengal  Service   of               Engineers under the P.W. Department, on ad hoc

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             basis,  for  a period of 6 (six)  months  with               effect  from  the dates of  joining  or  until               further orders whichever is earlier. 929               4.  The appointment is purely on ad hoc  basis               and  he  will have to revert to  the  post  of               S.A.E.  if  he  is not  selected  for  regular               appointment as Assistant Engineer through  the               P.S.C." The initial ad hoc appointment was extended periodically, on the  same  terms, during the entire period  upto  26.2.1980. During  this  period, several opportunities  were  given  to these persons to appear before the Public Service Commission to   satisfy  the  condition  attached  to  their   ad   hoc appointment, but none of the writ petitioners complied  with the  requirement, declining throughout to appear before  the Public Service Commission.  Strangely, the State  Government requested   the   Public  Service   Commission   to   permit regularisation  of the services of these ad hoc,  appointees as  Assistant Engineers, without being selected for  regular appointment by the Public Service Commission, but the Public Service  Commission  firmly turned down that  request.   The PSC’s  letters  dated 4.5.1978,  10.10.1979  and  22.11.1979 contain such refusal. The  Government,  even  then,  took  the  decision  on  26th February,  1980  to regularise these  persons  as  Assistant Engineers, and, consequently, took three simultaneous  steps on  26.2.1980: the requirement in the rules of  consultation with  the  P.S.C. was dispensed with, for  them;  they  were absorbed  as temporary Assistant Engineers; and  rule  under Article  309  was  made, providing for  their  seniority  as temporary  Assistant  Engineers, with effect from  the  same date  i.e. 26.2.1980. This rule clearly provided,  that  all persons appointed regularly in accordance with rules,  prior to 26.2.1980, as Assistant Engineers would rank above the ad hoc appointees so absorbed with effect from 26.2.1980.  This decision of the Government has also been implemented. Surprisingly,   the  grievance,  even  then,  of  the   writ petitioners is, that their seniority should be reckoned  not only from 26.2.1980, as has been done, but from the date  of their  initial  ad hoc appointment made temporarily  in  the above  manner,  notwithstanding the conditions  attached  to that  appointment  under  the rules, and  their  failure  to fulfill the same. It  is sufficient to refer to certain portions of the  PSC’s reply dated 4th May, 1978 to the State Government’s proposal for regularisation of ad 930 hoc  appointments, reiterating the strong objection  of  PSC that ’the appointments had been ab initio irregular, illegal and unconstitutional.’ Relevant extract from the reply is as under:-               "2.  It appears that the cases of 27 of 36  ad               hoc appointments of Assistant Engineer (29  in               the  Civil  Branch  and 7  in  the  Electrical               Branch)  under the Public Works Department  as               made  between  May, 1974 and June,  1975  were               earlier reported to the Commission in January,               1975.  The Commission informed Government that               the appointments had been ab initio irregular,               illegal  and  unconstitutional  and  requested               Government to make regular recruitment to  the               posts  after advertisement  (vide  Secretary’s               D.O.  No. 370-PSC dated the 8th March,  1975).               The  Commission also brought the  irregularity

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             to  the  notice of the Chief  Secretary  whose               reply  in  this regard was  as  follows  (vide               Chief  Secretary’s letter No. 938/75-CS  dated               the  22nd August, 1975 issued by Public  Works               (Estt.) Department :               ’...The  ad hoc appointments in question  were               made  by  the Public Works Department  in  the               exigencies    of   public   service    pending               recruitment of Assistant Engineers through the               Public Service Commission, West Bengal and  on               the  express condition that the concerned  of-               ficers would have ’lo revert if they failed to               be  selected by the Public Service  Commission               for appointment as Assistant Engineers."               3.It  appears that of the 29 ad hoc  Assistant               Engineers  (Civil) only 3 applied in  response               to the Commission’s subsequent  advertisement.               None   of   them  however  appeared   at   the               preliminary  written  test held  by  the  Com-               mission in that connection.  As regards the  7               posts  of Assistant Engineers (Electrical)  it               appears  that  all  the 7  ad  hoc  appointees               applied   in  response  to  the   Commission’s               advertisements issued in 1975 but that none of               them was able to obtain even the pass mark  at               the  interviews.  In the above context  it  is               not clear how Government can 931               now  sponsor a proposal for regularisation  of               the appointment of these ad hoc appointees." In  this  reply it was finally said that the  illegality  of these ad hoc appointments could not be cured.  It was  after the strong stand taken by the PSC, that the State Government took the aforesaid action on 26.2.1980 to dispense with  the requirement  of  consultation with the PSC,  and  regularise appointments   of  ad  hoc  appointees  with   effect   from 26.2.1980. The Rules for seniority made by the  notification dated 26.2.1980 issued in exercise of the power conferred by the proviso to Article 309 of the Constitution, are as under               "1.  These rules may be called  the  Seniority               Rules for the Assistant Engineers recruited in               the  Public  Works Department  otherwise  than               through  the Public Service  Commission,  West                             Bengal  during  the  period from  May  1974  t o               June,1976.               2. The Assistant Engineers under Public  Works               Department  who were recruited otherwise  than               through  the Public Service  Commission,  West               Bengal during the period from May 1974 to June               1976 and who were excluded from the purview of               the  Public  Service Commission,  West  Bengal               under this department notification No. 1299- F               dated 26.2.1982, shall be deemed to be  junior               to any Assistant Engineer who was selected  by               the Public Service Commission, West Bengal and               was   appointed  on  a  date  prior  to   26th               February,   1980.   The   inter-seniority   in               respect  of  the Assistant Engineers  who  are               covered  by  the said  notification  shall  be               determined  on  the basis of select  list,  if               any.   In the absence of any such select  list               the inter-se seniority should be determined on               the  basis  of  their  length  of  service  as               Assistant   Engineer  in  the   Public   Works

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             Department."               (emphasis supplied) These  ad  hoc  appointees having obtained  the  benefit  of regularisation  with  effect from  26.2.1980  without  being selected  by  the  PSC,  and  being  given  the  benefit  of seniority from the date of their regularisation on 932 26.2.1980,  have  challenged  the  Government’s  action  and claimed seniority with effect from the date of their initial ad  hoc  appointment,  of  this nature.   It  may,  here  be mentioned,  that  in case of the ad hoc  appointees  in  the Irrigation  and  Waterways  Department,  even  a  rule   for seniority  being given to them from 26.2.1980 was not  made, as was done for the ad hoc appointees in the P.W.D., and yet they  have also been given the same benefit.  They make  the same grievance, inspite of this. On  behalf of the appellants, State of West Bengal  and  the direct  recruits aggrieved by the judgment of  the  Division Bench of the High Court, it has been urged that the claim of the  writ  petitioners (respondents in  these  appeals)  for seniority being given to the, retrospectively from the  date of  their initial ad hoc appointment, made contrary  to  the rules, in spite of their regularisation being made expressly from   26.2.1980,  is  wholly  untenable  and  against   the decisions of this Court, particularly the constitution bench decision   in   Direct   Recruit   Class   II    Engineering Officer’s  Association and Ors. v. State of Maharashtra  and Ors.,  [1990] 2 SCR 900 = [1990] 2 SCC 715.  On this  basis, it  was submitted that the Division Bench of the High  Court committed  an error in reversing the judgment of the  Single Bench, by which the writ petitions had been dismissed. In reply Shri G.L. Sanghi appearing for the writ petitioners (respondents  in  all  these appeals)  submitted,  that  the initial ad hoc appointment of the writ petitioners was  made by a mode permissible under the rules; that appointment  was made in relaxation of’ the rules by the Government which  is implicit in the action taken; the initial ad hoc appointment must, therefore, be equated with a regular appointment  made under   the  rules;  and  on  this  equation  there  is   no justification for discrimination between the initial ad  hoc appointees  and  regular  appointees  coming  in  by  direct recruitment  thereafter  in accordance with rules.   It  was submitted  that  the  initial  ad  hoc  appointment   being, therefore, in the nature of regular appointment, made during an  emergency, after selection by a Committee consisting  of five  Chief Engineers, these persons are entitled  to  count their  entire service including the ad hoc period  prior  to 26.2.1980, for the purpose of their seniority.  Shri  Sanghi relied  on the decisions of this Court in A.  Janardhana  v. Union of India and Ors.[1983] 2 SCR 936 and Narender  Chadha    Ors.  v.  Union of India and Ors. [1986]  1  SCR  211  to support his submission.  Shri Sanghi further submitted, that the  case of the writ petitioners fell squarely  within  the ambit of conclusion (B) of the summary 933 in Maharashtra Engineers case (in para 44 of the SCR =  para 47 of SCC. The question, therefore, is whether Shri Sanghi is right  in his submission that this case falls within the ambit of  the said  conclusion  (B) in Maharashtra  Engineers  case.   The submission  of the other side is that this case  falls,  not within  conclusion (B) but the corollary mentioned  in  con- clusion  (A),  of that decision.  Conclusions (A)  and  (B), which alone are material, are as under :-               "(A) Once an incumbent is appointed to a  post

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             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." It is not necessary to deal at length with the decisions  of this  court in A. Janardhana and Narender Chadha in view  of the   later  constitution  bench  judgment  in   Maharashtra Engineers’ case, wherein all the relevant earlier  decisions have been considered before summarising the conclusions  (in para 44 of SCR = para 47 of SCC). We  may,  however,  briefly refer to  the  decisions  in  A. Janardhana  and  Narender  Chadha,  since  Shri  Sanghi  has strongly  relied  on them.  It may be  mentioned  that  both these  decisions  related to inter-se  seniority  of  direct recruits and promotees, the two channels for appointment  to the  posts, where there was a quota prescribed for  the  two channels leading to rota for confirmation, and the seniority was  based on the date of confirmation, according to  rules. The  dispute arose as a result of promotions being  made  in excess  of the promotees quota, in the case of  the  surplus promotees.  It 934 was  in  that  context, that the  question  of  taking  into account  longer  period of continuous  officiation  for  the purpose of fixing inter-se seniority of direct recruits  and promotees,  came  up  for consideration.   Those  cases  are clearly  distinguishable.  In the present case, there is  no dispute between promotees and direct recruits, the claim  of the writ petitioners being based only as direct recruits  in the cadre of Assistant Engineers, and not as promotees  from the  lower cadre of Sub- Assistant Engineers to  which  they had earlier belonged.  The present is, therefore not a  case of  a  dispute relating to the surplus promotees,  who  were given  promotion regularly in accordance with rules, but  in excess of the quota fixed for them under the rules.  In  the present case, all the writ petitioners are persons who  were given  ad  hoc temporary appointments for  a  fixed  period, which   was   extended  from  time  to   time   till   their regularisation  on 26.2.1980, and that too by relaxation  of the condition of selection by the Public Service Commission, which  was an express condition of their ad hoc  appointment and  a requirement for regular appointment under the  Rules. Assuming  the  relaxation made in their case  by  the  State Government  on  26.2.1980 to be valid, as the  same  is  not disputed  before  us,  they could be  treated  as  regularly appointed   only  with  effect  from  26.2.1980   when   the relaxation  was  given  to  them,  and  an  order  was  made simultaneously  absorbing  them in the  cadre  of  Assistant Engineers,  also  framing  a rule at  the  same  time  under Article  309 providing for fixation of their seniority  only from that date.  Accordingly, there is no foundation for the claim  that  they could be treated at par  with  the  direct recruits, regularly appointed prior to 26.2.1980.

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The admitted facts, which are the foundation of the claim of the  writ  petitioners,  are sufficient  to  negative  their claim.   It is obvious that prior to the steps taken by  the State  Government on 26.2.1980 for their  regularisation  in this   manner,  there  was  no  basis  on  which  the   writ petitioners  could  claim  to  be  regularly  appointed   as Assistant  Engineers;  and, therefore, the manner  in  which they  were  regularised, including the mode of  fixation  of their  seniority with effect from 26.2.1980, is decisive  of the  nature  of their regular appointment.   This  alone  is sufficient  to negative their further claim.  They can  make no  grievance  to any part of that exercise, made  only  for their benefit. The constitution bench in Maharashtra Engineers’ case, while dealing  with Narender Chadha, emphasised the  unusual  fact that  the promotees in question had worked continuously  for long periods of nearly fifteen to 935 twenty  years on the posts without being reverted, and  then proceeded to state the principle thus :               "We,  therefore,  confirm  the  principle   of               counting   towards  seniority  the   period-of               continuous     officiation    following     an               appointment made in accordance with the  rules               prescribed     for     regular     substantive               appointments in the service.’ The constitution bench having dealt with Narendra Chadha  in this manner, to indicate the above principle, that  decision can  not  be construed to apply to cases where  the  initial appointment was not according to rules. We  shall  now  deal with conclusions (A)  and  (B)  of  the constitution  bench  in  the  Maharashtra  Engineers’  case, quoted above. There can be no doubt that these two conclusions have to  be read  harmoniously, and conclusion (B) can not  cover  cases which  are  expressly excluded by conclusion (A).   We  may, therefore, first refer to conclusion (A).  It is clear  from conclusion  (A) that to enable seniority to be counted  from the  date  of initial appointment and not according  to  the date  of confirmation, the incumbent of the post has  to  be initially appointed ,according to rules’.  The corollary set out  in  conclusion (A), then 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 posts  cannot  be  taken into account  for  considering  the seniority.  Thus, the corollary in conclusion (A)  expressly excludes the category of cases where the initial appointment is  only ad hoc and not according to rules, being made  only as a stop-gap arrangement.  The case of the writ petitioners squarely  falls  within this corollary  in  conclusion  (A), which  says  that the officiation in such  posts  cannot  be taken into account for counting the seniority. This  being the obvious inference from conclusion  (A),  the question  is whether the present case can also  fall  within conclusion  (B)  which deals with cases in which  period  of officiating service will be counted for seniority.  We  have no  doubt  that conclusion (B) cannot  include,  within  its ambit,  those  cases  which are  expressly  covered  by  the corollary  in  conclusion  (A), since  the  two  conclusions cannot be read in conflict with each other. 936 The  question therefore, is of the category which  would  be covered  by  conclusion (B) excluding  therefrom  the  cases covered by the corollary in conclusion (A). In  our  opinion  the conclusion (B) was added  to  cover  a

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different  kind of situation, wherein the  appointments  are otherwise  regular,  except for the  deficiency  of  certain procedural  requirements  laid down by the rules.   This  is clear from the opening words of the conclusion (B),  namely, ’if  the  initial appointment is not made by  following  the procedure  laid down by the rules’ and the later  expression ’till  the regularisation of his service in accordance  with the rules’.  We read conclusion (B), and it must be so  read to re-councile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not  limited  to a fixed period of time or  purpose  by  the appointment  order  itself,  and  is  made  subject  to  the deficiency in the procedural requirements prescribed by  the rules  for  adjudging suitability of the appointee  for  the post  being  cured  at  the  time  of  regularisation,   the appointee being eligible and qualified in every manner for a regular  appointment on the date of initial  appointment  in such  cases.  Decision about the nature of the  appointment, for determining whether it falls in this category, has to be made  on the basis of the terms of the  initial  appointment itself and the provisions in the rules.  In such cases,  the deficiency  in the procedural requirements laid down by  the rules  has to be cured at the first  available  opportunity, without any default of the employee, and the appointee  must continue in the post uninterruptedly till the regularisation of  his  service,  in accordance with the  rules.   In  such cases,  the appointee is not to blame for the deficiency  in the  procedural requirements under the rules at the time  of his  initial  appointment,  and  the  appointment  not-being limited  to  a  fixed period of time is  intended  to  be  a regular  appointment,  subject to the  remaining  procedural requirements  of the rules being fulfilled at the  earliest. In  such  cases also, if there be any delay  in  curing  the defects  on  account  of any fault  of  the  appointee,  the appointee  would  not get the full benefit  of  the  earlier period on account of his default, the benefit being confined only  to  the  period for which he is not  to  blame.   This category  of  cases is different from those covered  by  the corollary  in  conclusion (A) which relates  to  appointment only  on  ad  hoc basis as a stop-gap  arrangement  and  not according  to rules.  It is, therefore, not correct to  say, that  the  present  cases  can  fall  within  the  ambit  of conclusion (B), even though they are squarely covered by the corollary in conclusion (A). 937 In view of the above, it is clear that the claim of the writ petitioners (respondents in all these appeals) for  treating their  entire  period  of ’service  prior  to  26.2.1980  as regular  service for the purpose of seniority, and  fixation of   their   seniority  accordingly,  is   untenable.    The submission  of  Shri  Sanghi  that  their  initial  ad   hoc appointment   must  be  treated  as  having  been  made   in accordance  with  the  rules  since  the  selection  by   an alternative  mode,  namely,  by a committee  of  five  Chief Engineers  was  resorted  to on account  of  the  emergency, cannot be accepted.  Rule 11 of the 1959 Rules provides  for appointments to be made during emergency, and lays down that such  appointments  during emergency can be  made  only  ’by advertisement  and  interview, through  the  Public  Service Commission,   West   Bengal.’   Admittedly,   this   express requirement  in  Rule  11  was  not  followed  or  fulfilled subsequently,   and,   therefore,   the   initial   ad   hoc appointments  cannot be treated to have been made  according to  the  applicable rules.  These ad hoc  appointments  were clearly not in accordance with the rules, and were made only

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as  a  stop-gap arrangement for fixed period,  as  expressly stated in the appointment order itself. Thus,  there  is  no escape from  the  conclusion  that  the present  cases  fall  squarely  within  the  ambit  of   the corollary  in conclusion (A), of Maharashtra Engineers  case and,  therefore,  the  period  of ad  hoc  service  of  writ petitioners (respondents) on the post of Assistant  Engineer prior  to 26.2.1980, cannot be counted for  reckoning  their seniority. Consequently,  these  appeals  are  allowed.   The  impugned judgments  of the Division Bench of the High Court, are  set aside,  and  those of the Single Bench dismissing  the  writ petitions are restored.  No costs. N.V.K.                          Appeals allowed. 938