REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APEAL NO. 3620 OF 2009

(Arising out of SLP (C ) No. 2848 of 2006)

State of Rajasthan and Ors. …Appellants

Versus

Jagdish Narain Chaturvedi ….Respondent

WITH

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T.P.(C) No. 198/2006

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5

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7

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1.Leave granted.

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

judgment rendered by different benches of the Rajasthan High Court allowing

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

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

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

provisions contained in the recruitment rules contemplated by the Government

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

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

relate to the appointments made under the Rajasthan Subordinate Offices

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

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

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

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

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

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

8

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

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

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

Rules’) .

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

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

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

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

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

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

employees refer to regular service.

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

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

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

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

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

27 years. Subsequent Notification is dated 25.1.1992 which talks of

9

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

service.

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

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

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

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

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

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

were superseded.

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

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

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

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

prospective employment as is evident from the expression “occurrence of

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

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

10

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

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

negative equality.

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

submitted that similar issues were decided earlier and the special leave

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

not question the correctness of the decision.

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

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

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

“Ad hoc appointment means temporary appointment

made without selection of the candidate by any of the methods

of recruitment provided under the relevant service rules, or any

orders of Government where no service rules exist and

otherwise than on the recommendation of the Commission if

the post is in its purview.”

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

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

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

11

Clarification was necessary because of doubts regarding regular appointment.

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

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

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

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

which were illustratively filed indicate that the appointments were till regular

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

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

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

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

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

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

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

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

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

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

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

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

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

12

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

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

purpose of seniority.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13

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

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

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

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

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

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

as follows:

“7. Coming to the circular dated 2-6-1989, issued by the

Financial Commissioner and Secretary to the Government of

Haryana, Finance Department, it appears that the aforesaid

circular had been issued for removal of anomalies in the pay

scale of Doctors, Deputy Superintendents and Engineers, and

so far as Engineers are concerned, which are in Class I and

Class II, it was unequivocally indicated that the revised pay

scale of Rs 3000 to Rs 4500 can be given after completion of

5 years of regular service and Rs 4100 to Rs 5300 after

completion of 12 years of regular service. The said Financial

Commissioner had issued yet another circular dated 16-5-1990,

in view of certain demands made by officers of different

departments. The aforesaid circular was issued after

reconsideration by the Government modifying to some extent

the earlier circular of 2-6-1989, and even in this circular it was

categorically indicated that so far as Engineers are concerned,

they would get Rs 3000 to 4500 after 5 years of regular and

satisfactory service and selection grade in the scale of pay of

Rs 4100 to Rs 5300, which is limited to the extent of 20% of

the cadre post should be given after 12 years of regular and

satisfactory service. The aforesaid two circulars are

unambiguous and unequivocally indicate that a government

servant would be entitled to the higher scale indicated therein

only on completion of 5 years or 12 years of regular service

14

and further the number of persons to be entitled to get the

selection grade is limited to 20% of the cadre post. This being

the position, we fail to understand how services rendered by

Rakesh Kumar from 1980 to 1982, which was purely on ad hoc

basis, and was not in accordance with the statutory rules can be

taken into account for computation of the period of 12 years

indicated in the circular. The majority judgment of the High

Court committed serious error by equating expression “regular

service” with “continuous service”. In our considered opinion

under the terms and conditions of the circulars dated 2-6-1989

and 16-5-1990, the respondent Rakesh Kumar would be

entitled for being considered to have the selection grade on

completion of 12 years from 29-1-1982 on which date he was

duly appointed against a temporary post of Assistant Engineer

on being selected by the Public Service Commission and not

from any earlier point of time. The conclusion of the majority

judgment in favour of Rakesh Kumar, therefore, cannot be

sustained.

xxx xxx xxx

9. Under the Recruitment Rules which had been made in

exercise of powers conferred by the proviso to Article 309 of

the Constitution “member of service” means an officer

appointed substantively to a cadre post and includes in case of

a direct appointment an officer on probation or an officer who

having successfully completed his probation awaits

appointment to a cadre post. In case of an appointment by

transfer an officer who is on probation or who having

successfully completed the probation awaits appointment to a

cadre post.

10. Under Rule 6 of the Recruitment Rules, recruitment to the

service in the cadre post could be made both by way of direct

appointment as well as by promotion in the proportion from

different sources mentioned in the said Rule. Sub-rule (3) of

Rule 6 authorises appointment to a cadre post as stopgap

15

arrangement from sources other than the allotted source when a

candidate from the allotted source is not available from sources

1 and 3, but such appointee is liable to be reverted to his

original cadre when a candidate from the allotted source is

available and the period of service rendered by such person

shall not be reckoned for the purpose of his seniority.

11. Sub-rule (4) of the Rule thus enables the State Government

to fill up a short-term vacancy in the exigencies of public

service after recording reasons for a period not exceeding six

months in each case, without resorting to the select list

prepared under Rule 9.

12. Under Rule 8 appointment to the service has to be made by

way of direct recruitment strictly in the order of merit indicated

by the Public Service Commission depending upon the number

of vacancies available in the cadre.”

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

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

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

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

“7. Rule 21-A provides for regularisation of service of ad

hoc employees by treating them as persons appointed in

the service on the date of their regularisation. Rule 9

provides that a person appointed under that rule shall be

entitled to seniority only from the date of appointment

after selection in accordance with the said Rules and

shall, in all cases, be placed below the employees

appointed in accordance with the procedure for direct

recruitment prior to the appointment of such persons

under those Rules. In view of these statutory Rules, the

16

Government could not have treated the respondents and

other ad hoc employees whose services were regularised

on 17-5-1985 as persons regularly appointed from an

earlier date. Nor could the Government have counted

seniority from an earlier date either for promotion to the

higher post or for the purpose of giving selection grade.”

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

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

petitioners-respondents the initial appointment was a substantive appointment.

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

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

substantive appointment, the respondents-writ petitioners could have

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

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

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

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

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

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

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

that the initial appointment was substantive appointment is contrary to the

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

17

the appointment letter shows that the appointment was till selected candidates

join.

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

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

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

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

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

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

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

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

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

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

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

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

rules for regular appointment.

18

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

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

25.1.1992 which provided for selection pay scale the appointment mentioned

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

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

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

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

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

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

“

23. Appointment to the Service.-, (1) Subject to the

provisions of rules 6, 6A, 6B and 6C, except in respect of the

posts of Stenographers the Appointing Authority shall appoint

candidates who stand highest in the order of merit in the list

prepared under rule 22, provided that he is satisfied after such

enquiry as may be considered necessary that such candidates

are suitable in all other respects for such appointment:

Provided that subject to the provisions of rule 6, the

Appointing Authority shall appoint candidates to the post of

Stenographers from the list prepared under sub-rule (2-A) of

rule 22 provided that he is satisfied after such enquiry as may

be considered necessary that such candidates are suitable in all

other respects for such appointment.

(2) Notwithstanding anything contained in rule 7 the persons

appointed temporarily as Lower Division Clerk up to 7.11.75.

who have been continuously holding such posts or higher posts

19

shall be deemed to have been appointed regularly on temporary

basis provided they fulfil other conditions prescribed in the

Rules. They shall be eligible to be appointed substantively as

Lower Division Clerks according to the date of their temporary

appointment and on occurrence of permanent vacancies and

their work being found satisfactory:

Provided that a person working temporarily as Lower

Division Clerk whose work is not found satisfactory shall be

liable to be removed from service.

(i) by giving him one month's notice if he has served

temporarily in connection with the affairs on the State for less

than three years; and

(ii) by following the procedure as laid down in the Rajasthan

Civil Services (Classification, Control and Appeal) Rules,

1958, if he has served for more than three years. All person

appointed temporarily as Lower Division Clerks after 31-3-

1978 shall be required to seek regular recruitment through the

Competitive examination as prescribed in the Rules.

(3) Notwithstanding anything contained in rule 7, the persons

who were appointed temporarily, in connection with the

general strike in accordance with the orders/instructions issued

by the State Government and were holding the posts of Lower

Division Clerks on 27.11.1975 and, who have not passed the

prescribed test conducted by the Appointing Authority under

the rules applicable to them at the time of their appointment

shall be given one more chance to pass the prescribed test in

accordance with the rules applicable to them before coming

into force of the rules amended Vide Notification

No.F.2(45)DOP/ B-1/72, dated 7.11.1975 published in the

Rajasthan Rajpatra, dated 27.11.1975, for being appointed

substantively as Lower Division Clerks according to the date of

their temporary appointment on occurrence of permanent

vacancies provided that the service of persons who, fail to pass

the said test to be held by the Appointing Authority shall be

liable to be terminated by giving one month's notice or pay and

20

allowances in lieu thereof, if they have served temporarily in

connection with the affairs of the State for less than three years;

and three months notice of pay and allowances in lieu thereof if

they have served temporarily in connection with the affair of

the

State for more than three years."

(4)Notwithstanding anything contained in rule 5, all persons

working as Lower Division Clerk during the period from

8.11.1975 to 31.3.1978 on ad-hoc basis and who could not

appear in or pass the competitive/qualifying examination held

by the Commission as yet, shall on availability of permanent

vacancies, be made permanent subject to the condition that they

pass a Performance. Test conducted by the Appointing

Authority in accordance with the syllabus prescribed in Part-V

of Schedule-II. Such persons shall be allowed three chances to

pass the said test.

(5) Notwithstanding anything contained in Rule 5, all persons

working as Lower Division Clerk during the period from

1.4.1978 to 31.3.1980 on ad hoc basis and who could not

appear in or pass the competitive/qualifying examination held

by the commission as yet, shall on availability of permanent

vacancies, be made permanent subject to the condition that they

pass a performance test conducted by the Head of Department

concerned in accordance with the syllabus prescribed in Part IV

of Schedule-II. Such persons shall be allowed three chances to

pass the said test:

Provided that if a person fails to pass the said test in

three chances he shall be liable to be removed from the services

:

21

(i)by giving him one month's notice, if he served

temporarily in connection with the affairs of the State for less

than three years, and

(ii)by allowing procedure as laid down in Rajasthan Civil

Services (Classification, Control and Appeal) Rules, 1958, if he

has served for more than three years.

(6) Notwithstanding anything contained in Rule 5, all persons

working as Lower Division Clerks during the period from,

1.4.1980 to 31.12.1984 on urgent temporary basis and who

have not passed the competitive examination held by the

commission as yet shall on availability of permanent vacancies

be made permanent subject to the condition that they pass

qualifying examination conducted by the Commission in

accordance with syllabus prescribed in Part-IV of Schedule-II.

Provided that the Commission shall not recommend any

candidate who has failed to obtain a minimum of 35% marks in

each of the compulsory and optional papers in the Lower

Division Clerks’ Examination;

Provided further that if a person fails to pass the said

examination his services shall be terminated on the expiry of 30

days from the date of receiving list of successful candidates by

the Deputy Secretariat to the Government, Department of

Personnel and Administrative Reforms (B-I) Department.

(7) Notwithstanding anything contained in rule 5, all persons

working as Lower Division Clerks during the period from

1.4.80 to 31.12.84 on urgent temporary basis and who have not

passed or appeared in the qualifying examination conducted by

the Commission under sub-rule (6) of rule 23 on availability of

permanent vacancy be made permanent subject to the condition

that they pass a performance test conducted by the Appointing

Authority within a period of three years in accordance with the

provisions of the rules. Such persons shall be allowed three

22

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

three years;

Provided that if a person fails to pass the said test in three

chances to be availed within a period of three years he shall be

liable to be removed from services.

(8) Notwithstanding anything contained in rule 5 handicapped

persons appointed on the post of L.D.C. during the period from

1.4.80 to 31.3.88 shall on availability of permanent vacancy be

made permanent by the Appointing Authority on their work

being satisfactory.

(9) Notwithstanding anything contained in rule 5, all persons

appointed as L.D.Cs. on ad-hoc basic or on daily wage basis

during the period from 1.1.85 to 31.3.90 and are still working

as such on the date this amendment comes into force shall be

appointed on regular basis on availability of vacancy subject to

the condition that they pass a performance test conducted by

the Appointing Authority within a period of three years in

accordance with the provisions of the rules. Such persons shall

be allowed three candidates to pass the said test to be availed

within a period of three years;

Provided that if a person fails to pass the said test in three

chances to be availed within a period of three years, he shall be

liable to be removed from services.

27. Appointment to the Service:- Appointment by promotion

to the posts in the services, specified in the Schedule appended

with these Rules, shall be made by the Appointing Authority on

the occurrence of the vacancies as determined under rule 8

from amongst the persons selected under Rules 25 and 26, as

the case may be.

28. Urgent temporary appointment:- A vacancy in the

service which cannot be filled in immediately either by direct

recruitment or by promotion under the rules may be filled in on

23

urgent temporary basis “by the Government or by the authority

competent to make appointments" as the case may be, by

appointing in an officiating capacity thereto an officer eligible

for appointment to the post by promotion or by appointing

temporarily thereto a persons eligible for direct recruitment to

the services, where such direct recruitment has been provided

under the provisions of these Rules:

Provided that such an appointment will not be continued

beyond a period of one year without referring the case to the

Commission for concurrence where such concurrence is

necessary, and shall be terminated immediately on its refusal to

concur.

Provided further that in respect of the service or a post in

the service for which both the above methods of recruitment

have been prescribed, the Government or the authority

competent to make appointment, as the case may be shall not,

save with the specific permission of the Government in the

Department of Personnel in the case of State Services and

Government in the Administrative Department concerned in

respect of other services, till they temporary vacancy against the

direct recruitment quota by a whole-time appointment for a

period exceeding three months otherwise than out of persons

eligible for direct recruitment and after a short-term

advertisement.

(2) In the event of non-availability of suitable persons

fulfilling the requirements of eligibility for promotion,

Government may not withstanding the condition of eligibility

for promotion required under sub-rule (1) above, lay down

general instructions for grant of permission to fill the vacancies

on urgent temporary basis subject to such conditions and

restrictions regarding pay and other allowance as it may direct.

Such appointments shall however be subject to concurrence of

the Commission as required under the said sub rule."

24

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

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

the relevant Recruitment Rules which are regular and appointments made de

hors the regular Recruitment Rules which are ad hoc.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25

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

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

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

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

appointment.

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

allowed which we direct.

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

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

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

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

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

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

State is directed to consider this question immediately.

26.Appeal is disposed of.

26

………… ……………………….J.

(Dr. ARIJIT PASAYAT)

………… ……………………….J.

(ASOK KUMAR GANGULY)

New Delhi,

May 08, 2009

27