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PETITIONER:

EXCISE COMMISSIONER, KARNATAKA AND ANR.

Vs.

RESPONDENT:

V. SREEKANTA

DATE OF JUDGMENT05/03/1993

BENCH:

RAY, G.N. (J)

BENCH:

RAY, G.N. (J)

SAWANT, P.B.

CITATION:

1993 AIR 1564 1993 SCR (2) 267

1993 SCC Supl. (3) 53 JT 1993 (2) 384

1993 SCALE (2)1

ACT:

Karnataka State Civil Services (Direct Recruitment to class

III posts) (Special) Rules, 1970.-

Rules 3, 6--Seniority--Inspector of Excise--Appointment of

'local candidate"--Regularisation--Counting of service for

purpose of seniority--Whether from date of adhoc appointment

or regularisation.

HEADNOTE:

The Respondent and several others were appointed as

Inspectors of Excise (junior) on a purely temporary basis on

17.1.1968. The services of these 'local candidates" i.e.

direct recruits appointed otherwise than in accordance with

the General Rules or Special Rules, were regularised from

26.10.1971. Provisional seniority list prepared by the

Department showed the seniority of these candidates from the

date of their regularisation and not from their date of

appointment. Despite objections from the candidates the

said list was finalised. The Respondent challenged the

seniority list by riling a Writ Petition before the High

Court. The Writ Petition was disposed of with a direction

to the appellants that the seniority list should be

published afresh considering the claim of the respondent

that his seniority should be counted from his date of

appointment and not from the date of his regularisation.

Again, the department published a provisional seniority list

showing the seniority of the Respondent from the date of his

regularisation. The Respondent filed another Writ Petition

challenging the seniority list. The writ petition was dis-

missed by a Single Judge holding that as per Rule IA of

Karnataka Government Servants (Seniority) Rules, 1957 the

said Rules were not applicable to a local candidate, in

whose case the seniority would count only from the date of

regularisation. On an appeal by the Respondent, the',

Division Bench of the High Court set aside the judgment of

the Single Judge and directed that seniority of the

Respondent should be reckoned from the date of his initial

appointment. Aggrieved by this judgment, the Department

preferred the present appeal.

267

268

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The appellants contended that since the respondent was

appointed to the post of Excise Inspector (junior) as a

local candidate purely on ad hoc basis and so he was not

entitled to count his ad hoc appointment for purposes of

seniority.

Allowing the appeal, this Court,

HELD:1.1. The respondent was appointed as a local candidate

through Employment Exchange in view of the specific sanction

of the. Government for such ad hoc appointment. The terms

of appointment in the context of sanction of the said posts

by the Government clearly demonstrates that such appointment

of the said respondent and other employees in 1968 was ad

hoc appointment given to local candidates sponsored by the

local Employment Exchange. It was only on October 26, 1971,

the respondent became eligible to be recruited in the said

Class III post,'and such appointment/or regularisation of

his ad hoc appointment was made possible because of the

framing. of the Karnataka State Civil Services (Special)

Rules, 1970. [278D.E]

1.2.The respondent was not entitled to claim seniority from

the date of his initial. appointment on ad hoc basis but he

was only entitled to claim seniority from the date of his

subsequent appointment or regularisation under the special

rules. Under Rule 3 of the special rules, ,the respondent,

having possessed the minimum qualifications prescribed by

the said special rules for recruitment to Class III Posts

and the respondent having been appointed on or after January

1, 1965 as a local candidate to a Class III post and having

put in a continuous service of one year prior to October 1,

1970 was eligible to be appointed under the said special

rules of recruitment and the respondent was given such

appointment with effect from October 26, 1971. [278F-H;

279A]

1.3.The respondent was entitled to be treated as direct

recruit properly made under the said special rules of 1970

only from October 26, 1971 and the service rendered by him

prior to the said date was only on the basis of ad hoc

employment not made in accordance with the rules of

recruitment. [279A]

Direct Recruit Class II Engineering Officers'Association and

others v. State of Maharashtra and others, AIR 1990 SC 1607

and Masood Akhtar Khan v. State of Madhya Pradesh, [1990] 4

SCC 24, relied on.

269

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1220 of

1993.

From the Judgment and Order dated 13.6.1990 of the Karnataka

High Court in Writ Appeal No. 2927 of 1986.

R.N.N. Murthy, M. Veerappa and K.H. Nobin Singh for the

Appellants.

H.N. Salve, S.R. Bhat, Mrs. Lalit M. Bhat, Ms. Kiran and

N.R. Nath for the Respondent.

The Judgment of the Court was delivered by

G.N. RAY, J. Leave granted.

The special leave petition is directed against the judgment

dated June 13, 1990 in Writ Appeal No. 2927 of 1986 passed

by the Division Bench of Karnataka High Court reversing the

judgment dated August 8, 1986 passed by the learned Single

Bench of the said High Court in Writ Petition No.6645 of

1982. The parties to the special leave application have

filed their respective counter affidavit and affidavit of

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rejoinder and have also made their respective submissions at

the hearing of the matter. For the purpose of appreciating

the respective contentions of the parties to the special

leave petition, relevant facts may be indicated as

hereunder.

The Respondent V. Sreekanta was appointed as an Inspector of

Excise (Junior) on January 17, 1968 vide O.M. No. ADM EST 1

1312/67 dated 11.1.1968 along with 37 other persons. It has

been indicated in the said letter of appointment that the

candidates sponsored by different employment exchanges to

the State were appointed as Excise Inspector and posted to

the places noted against each of them subject to the condi-

tions noted in the said letter of appointment. It was

specifically stated in the said appointment letter that the

appointment were made on purely temporary basis and the

services were liable to be terminated at any time without

notice. All the candidates including the said Sri Sreekanta

were required to give a declaration before joining the

service to the effect: "I understand that my employment

(Excise Inspector) is purely temporary and my services may

be dispensed with at any time without any reason being

assigned therefore and I accept the employment on this

basis". The services of the said Respondent Sri Sreekanta

and similarly appointed

270

other persons were regularised vide Order No. ADM EST 1

215/21-72 dated October 26, 1971 under the Mysore State

Civil Services (Direct Recruitment to class III posts)

(special) Rules 1970. It was specifically mentioned in the

said order of regularisation/appointment of the employees

including the said Sri Sreekanta that the services of the

said employees being local candidates were regularised in

the cadre of Inspectors of Excise. The specific term of

regularisation/appointment is to the following effect:

"The following Local Candidates who were

appointed as Inspectors of Excise are found

eligible for appointment to the posts (i.e.

Inspectors of Excise) under Rule 3 of the

Mysore State Civil Services (Direct

Recruitment to Class III posts) (Special)

Rules 1970. They are hereby appointed

temporarily as Inspectors of Excise in the pay

scales of Rs.160-350 with effect from the date

of this order and are placed on probation for

a period of 2 years from the said date."

It was also indicated in the said order of appointment that

"the seniority of the candidates in question shall be

governed by provisions of Rule 6 of the Mysore State Civil

Services (Direct Recruitment to Class III posts) (Special)

Rules 1970.

In the Karnataka State Civil Services (Direct Recruit to

Class III posts) (Special) Rule 1970 framed under Article

309 of the Constitution 'local candidate' has been defined

as follows:-

"Local candidate means any person appointed to

any of the categories of Class III posts by an

appointing authority by direct recruitmen

t

otherwise than in accordance with rule 4 of

the Karnataka State Civil Services (General

Recruitment Rules 1957, or the special rules

of recruitment applicable to such category of

Class III Posts, but does not include any

person;-

(i) Selected by the Karnataka Public Service

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Commission and appointed to an assumed charge

of such post in pursuance of such selection;

or

271

(ii) appointed temporarily for a fixed period

or for any item of work; or

(iii)whose services have been terminated due

to resignation or an enquiry under the

Karnataka Civil Services (Classification,

Control and Appeal) Rules, 1957".

Rule 3 of the said Rules deal with Recruitment. It has been

provided for in Rule 3 that direct recruitment to Class III

posts in the State Civil Services shall, notwithstanding

anything contained in any rules relating to recruitment to

any of the categories of Class III posts issued under the

proviso to Article 309 of the Constitution of India, be made

by the authority concerned by appointing local candidates

who were not disqualified for appointment under the

Karnataka State Civil Services (General Recruitment) Rules

1957 on the date of their appointment as Local Candidates

and who possess the qualifications specified in Sub Rule

(2). Sub Rule (2) is to the following effect:-

(2) For purposes of sub rule (1) the

candidate must be person,

(i) who on the date of his appointment to

the Class III posts referred to in item (ii),

(a) was within the age limit prescribed for

recruitment to such post by the rules of

recruitment applicable to such post's, and

where no such rules have been made by I he

Karnataka State Civil Services (General

Recruitment) Rules, 1957;

(b) possessed the minimum academic

qualification prescribed by the special rules

of recruitment applicable for recruitment to

such posts; and

(ii) who is or had been appointed on or after

the 1st January, 1965 as a local candidate' to

a Class III post and has or had put in a

continuous service of not less than one year

at any time prior to 1st October, 1970.

Rule 4 of the said Rules dealing such manner of recruitment

provides that in every department appointment to vacancies

categories of Class III

272

posts remaining after appointment of candidates selected by

Karnataka Public Service Commission and after providing for

appointment under Karnataka State Civil Service (Recruitment

of Local Candidates to Class III posts) Rules 1966 shall be

made by appointing local candidates under the said Special

Rules of 1970 who were in service on the date of commence-

ment of the said Rules of 1970 and who possessed

qualifications as mentioned in Rule 3 of the said Rules of

1970.

Rule 6 of the said Special Rules of 1970 provides as

follows:-

"Service for purpose of seniority:-

The service rendered by a candidate on or

after the date of his appointment to any

category of post in a department under Rule 4

shall count for purpose of determination of

seniority of such person with reference to

persons who are appointed to such category of

posts in such Department."

The department prepared a provisional seniority list of the

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Inspector of Excise (Junior) and the seniority of Sri V.

Sreekanta was counted from 26.10.1971 namely from the date

of regularisation/appointment of the said employee under the

said service Rules of 1970 and not from his initial

appointment on 17.1.1968. As despite objection, the final

list of seniority was published on the basis under which

provisional list was published, the said Sri V. Sreekanta

moved a writ petition in the Karnataka High Court in W.P.

No.6662 of 1979.

The Writ Petition was disposed of by the Karnataka High

Court by directing that the seniority list should be

published afresh after considering the claim of Sri V.

Sreekanta that his seniority should be counted from

17.1.1968 and not from 26.10.1971. After the disposal of the

said Writ Petition, the provisional list was again published

by counting the service of the said Sri V. Sreekanta with

effect from 26.10.1971. The writ petitioner Sri V. Sreekanta

then moved another Writ Petition in question namely W.P.

No.6645 of 1982 before the Karnataka High Court challenging

the preparation of provisional list be counting his service

from 26.10.1971.

The writ petitioner Sri V. Sreekanta contended that he being

initially appointed as Excise Inspector (Junior) in 1968 and

subsequently regularised in October 1971 his seniority

should be counted only from the

273

date of initial appointment in 1968 and not from the date of

regularisation and that in any event, in view of allowing

his claim of seniority by quashing the seniority list and

directing the respondent to prepare the seniority list

afresh after taking into consideration the claim of the writ

petitioner in the said earlier writ petition, the concerned

authorities were not entitled to count the seniority of writ

petitioner again on the basis of appointment on 26.10.1971.

The learned Single Bench by the judgment dated August 7,

1986 dismissed the writ petition by holding inter alia that

the writ petitioner did not produce the relevant orders

namely the order of appointment made on 17.1.1968 nor the

order regularising his service on 26.10.1971 and the writ

petitioner having been appointed as a local candidate on

17.1.1968, as per Rule 1A of Karnataka Government Servants

(Seniority) Rules 1957, the said seniority rules were not

applicable to a local candidate so long he continued as

local candidate. The proviso to the said Rule 1A provided

that where appointment was treated as regularised from any

date the Seniority in the service of such person would be

determined in accordance recruitment to the post held by

him. Hence the seniority of. the, writ petitioner was to be

counted from 26.10.1971 and hot otherwise

The writ petitioner thereafter preferred an appeal, before

the,, Division Bench of the Karnataka High Court. The

Division Bench allowed the appeal and set aside the judgment

of the learned Single Bench by its judgment dated. June 13,

1990. Unfotunately the judgment in appeal by the Division

Bench is very cryptic and does not contain any reasoning for

the conclusion made by the Division Bench that "irrespective

of the irregularity in the original appointment, where the

appellant was a local candidate and not a regular appointee,

inasmuch as he was appointed in the year 1968, for the

purpose of seniority that date alone is material". The

Division Bench directed that seniority of the appellant

should be reckoned from the date of initial appointment. As

aforesaid, this decision of the Division Bench is the

subject matter of challenge in this special leave petition.

It may be stated here that during the pendency of the

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special leave petition the writ petitioner Sri V. Sreekanta

and a number of other employees who were

regularised/appointed under the said service Rule of 1970

with effect from 26.10.1971 moved several applications

before the Karnataka Administrative Tribunal praying for

directing the concerned

274

authorities being Respondents in the applications, to count

the services of the said applicants rendered as local

candidats for the purpose of their seniority in the cadre.

Sri V. Sreekanta was applicant in Application No.4795 of

1990. The Administrative Tribunal disposed of the

application of the applicant Sri V. Sreekanta by holding

that for the self same relief no fresh application could be

moved before the Administrative Tribunal and if the said

applicant was aggrieved on account of non implementation of

the judgment rendered in his appeal by the Division Bench of

Karnataka High Court, he could move a contempt application

before the High Court. All other applications by different

applicants were rejected by the Karnataka Administrative

Tribunal by holding inter alia that they being local

candidates, the seniority is to be counted only from the

date of regularisation.

Mr. Narasimha Moorthy, learned counsel appearing for the

appellants, has submitted that the Writ

Petitioner/respondent had never been appointed on a regular

basis and such appointment of the respondent was made only

as a stop-gap-measure on an ad hoc basis without following

the regular procedure for direct recruitment to the Class

III Posts. He has drawn our attention to the Government

decision being Order No.HD 154 EDC 67 dated August 31, 1967

by which Government sanctioned 57 posts of Excise Inspectors

(Junior) on consideration of the proposals made by the

Excise Commissioner. It was specifically mentioned in the

said Order:

"in the meanwhile, as the posts are to be

filled up forthwith, the Excise Commissioner

is requested to take action to make in-charge

arrangements as far as possible and to fill up

the released and other vacancies by local

candidates through Employment Exchange and at

the same time, to take action to fill up the

posts through the Public Commission for

replacing the local candidates."

(emphasis supplied)

In the appointment letter by which the said Writ

Petitioner/respondent and 37 other persons were appointed on

January 11, 1968, the aforesaid Government Order No. HD EDC

67 dated August 31, 1967 was mentioned.

Mr. Narasimha Moorthy has submitted that as for the

respondent,

275

Sri V. Sreekanta, the letter of appointment read with the

sanction of the Government as contained in G.O. No. HD 154

EDC 67 dated August 31, 1967, clearly demonstrates that the

said respondent was given appointment through Employment

Exchange as a local candidate by way of a stop-gapmeasure

and in their letter of appointment it was specifically

mentioned that such service was basically temporary and

liable to be terminated without assigning any reason

whatsoever Mr. Narasimha Moorthy has also contended that

under the existing rules of recruitment, the said respondent

could not have been appointed by the Excise Commissioner

even though the said respondent had requisite qualification

for being considered for appointment either by the Public

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Service Commission of Karnataka or in accordance with the

rules of recruitment for the said Class III Posts. Mr.

Narasimha Morrthy has submitted that the cases of the said

respondent and other similarly circumstanced employees were

favourably considered by the Government and in order in give

them appointment in accordance with the rules, the said

special recruitment rules of 1970 were framed under Article

309 of the Constitution of India. Admittedly, under the

said special recruitment rules of 1970, the said respondent

and similarly circumstanced other employees were appointed

and/or regularised. He has submitted that the said Class

III posts were required to be filled up by way of direct

recruitment and so long the said special recruitment rules

of 1970 had not been framed, it was not possible to

regularise the said respondent and other employees and/or to

appoint them in accordance with the Rules. Though factually

the services of the said respondent and other regular

employees under the said special recruitment rules of 1970

were regularised in law, the said respondent and other

employees were deemed to have been directly recruited to the

said posts and precisely for the said reason, in the letter

of appointment it was mentioned that they had been directly

appointed to the said posts with effect from October 26,

1971 and they should remain on probation for two years from

the date of such appointment. Mr. Narasimha Moorthy has

submitted that in the facts and circumstances of the case,

the previous employment of the said respondent being purely

ad hoc appointment to a local candidate, the respondent was

not entitled to count his ad hoc appointment for the purpose

of senority in the cadre. Although, the respondent in the

said earlier proceedings before the High Court of Karnataka

had challenged the seniority list published by the

Administration on the ground that his seniority should have

been reckoned from the date of initial appointment in 1968

and not from the subsequent regularisation of appointment on

October 26, 1971,

276

the Karnataka High Court did not made any such finding in

favour of the said respondent but only directed the

authorities to publish the seniority list after considering

the said claim of the respondent. Since such claim could

not be entertained as legal and valid, such claim was not

accepted by the administration and the seniority list was

published afresh by counting the service of the respondent

and similarly circumstanced employees from the date of their

subsequent employment in accordance with the rules of

recruitment. Mr. Narasimha Moorthy has submitted that the

Karnataka Government Servants (Seniority) Rules, 1957 do not

support the contention of the respondents. He has submitted

that Rule I-A of the said seniority rules provides that the

said Rules would not be applicable to the local, candidates

who may be serving in any cadre. Proviso to the said Rule

1-A indicates that where the local candidate's appointment

is treated as regularised from any date, his seniority in

the services shall be determined in accordance with these

rules as if he had been appointed regularly as per the rules

of recruitment to the post held by him on that day. Mr.

Narasimha' Moorthy has also drawn our attention to Rule 6 of

the said special rules of recruitment of 1970 and the said

Rule 6 deals with the seniority of the employees Appointed

under the said rules. Under the provisions of Rule 6 the

services rendered by candidate on or after the date of his

appointment to any category of post of a department under

Rule 4, shall count for purposes of seniority of such person

with a reference to persons who are appointed to the said

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category of such department. Mr.Narasimha Moorthy has also

drawn the attention of this Court to the decisions of this

Court made in the Direct' Recruit Class II Engineering

Officers' Association and others v. State of Maharashtra.

and others, AIR 1990 SC 1607 and Masood Akhtar Khan' v.-

State of Madhya Pradesh, [1990] 4.SCC 24. The.

Constitution"s Bench in Engineering Officers' Association's

case has held 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. In the

subsequent decision 'in Masood Akhtar Khan's case, the said

decision in Engineering Officers' Association's case was

referred to and it has been held by this Court that the

decision of this Court unequivocally made it clear that if

the initial appointment is not according to the rules,

subsequent regularisation of service does not entitle an

employee to the benefit of intervening service for

seniority. It has been contended by Mr. Narasimha Moorthy

that in view of such decisions of this Court and in view of

the fact that the respondent was given appointment not in

accordance with the existing rules but only

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as a stop-gap-measure on ad hoc basis as local candidate,

the service rendered by the said respondent as local

candidate prior to his appointment or regularisation

according to the said special rules of recruitment in 1970

cannot be taken into consideration for the purpose of fixing

his seniority in the cadre. He has submitted that the

learned Single Judge disallowed the contention of the

respondent on very cogent reasons and no exception should be

made to such decision of the learned Single Bench, Mr.

Narasimha Moorthy has submitted that unfortunately the

Division Bench has not referred to the real question

involved in the matter and without considering the

reasonings indicated in the decision of the learned Single

Judge and also the correct legal position as laid down by

this Court has come to the conclusion that irrespective of

the fact that the respondent was a local candidate, his

seniority should be fixed from the date of his initial

appointment. and not from the date of regularisation. Mr.

Narasimha Moorthy has submitted that such view is contrary

to the Service rules and also contrary to the decisions of

this Court referred to hereinbefore. He. has therefore,

submitted that the decision of the Division Bench of the

Karnataka High Court should be set aside and the Writ

Petition of the respondent should be dismissed.

V. Sreekanta, has submitted that the decisions of this Court

as referred to hereinbefore are not applicable to the facts

and circumstance-, of the, case. In all the said decisions,

it has been held that in the case of ad hoc appointment,

seniority should not be counted for the period of such ad

hoc appointment. He has submitted that in the instant case

it should not be construed that the respondent was given an

ad hoc appointment. The respondent was recruited through

Employment Exchange and admittedly, the respondent had

requisite qualifications making him eligible to be directly

recruited under the existing rules of recruitment, He has

further submitted that the respondent was intended to be

absorded which may be evident from the fact that in the

letter of appointment it was indicated that the registration

with the Employment Exchange was to be cancelled on being

given appointment to the concerned employees. Since the

respondent and some other employees were given temporary

appointment without following existing recruitment rules,

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the Government in its anxiety to do justice to the

respondent and other employees framed the said special rules

of recruitment in 1970 and regularised their services. In

such circumstances. the irregular appointment being

subsequently regularised, the respon-

278

dent and similarly circumstanced other employees were

entitled to get the benefit of the continuity in service

from the date of initial appointment for the purpose of

reckoning the seniority. He has also submitted that it will

be unfair and unjust to deny the seniority to the said

respondent when admittedly, he had all the requisite

qualifications of being directly recruited in 1968 and he

had been rendering useful service in the cadre. He,

therefore, submits that under the ratio in the Engineering

Officers'Association's case and Masood Akhtar Khaan's case,

the respondent is entitled to claim seniority from the date

of initial appointment and the Division Bench was justified

in holding that it was immaterial if the respondent had'

been appointed as local candidate through local Employment

Exchange without following the rules of recruitment then in

force. He has, therefore, submitted that no interference is

called for against the decision of the Division Bench of the

Karnataka High Court and the appeal should be dismissed with

costs.

After giving our anxious consideration to the respective

contentions of the parties it appears to us that the Writ

Petitioner/respondent, Sri V. Sreekanta, was appointed as a

local candidate through Employment Exchange in view of the

specific sanction of the Government for such ad hoc

appointment. The terms of appointment in the context of

sanction of the said posts by the Government, in our view,

clearly demonstrates that such appointment of the said

respondent and other employees in 1968 was ad hoc

appointment given to local candidates being sponsored by the

local Employment Exchange. It was only on October 26, 1971,

the said respondent became eligible to be recruited in the

said Class III post, and such appointment/or regularisation

of his ad hoc appointment was made possible because of the

framing of the said special rules of recruitment in 1970.

In our view. Mr. Narasimha Moorthy is justified in his

submission that the respondent was not entitled to claim

seniority from the date of his initial appointment on ad hoc

basis but he was only entitled to claim seniority from the

date of his subsequent appointment or regularisation under

the said special rules of recruitment in 1970. It appears

to us that under Rule 3 of the said special rules of

recruitment of 1970, the respondent, having possessed the

minimum qualifications prescribed by the said special rules

of recruitment for recruitment to Class III Posts and the

said respondent having been appointed on or after January 1,

1965 as a local candidate to a Class III post and having put

in a continuous service of one year prior to October 1,

1970, was eligible to be appointed under the said special

rules

279

of recruitment and the respodent was given such appointment

with effect from October 26, 1971 under the said special

rules of recruitment of 1970. The said respondent was

entitled to be treated as direct recruit properly made under

the said special rules of 1970 only from October 26, 1971

and the service rendered by him prior to the said date was

only on the basis of ad hoc employment not made in

accordance with the rules of recruitment. In the aforesaid

circumstances, the decision of the Division Bench of the

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Karnataka High Court appears to be clearly erroneous and we

have no hesitation in setting aside the same. Learned

Single Bench of the Karnataka High Court, in our view, has

rightly dismissed the Writ Petition and we affirm the said

decision. The appeal is accordingly allowed without any

order as to costs.

G.N.

Appeal allowed.

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