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CASE NO.:

Appeal (civil) 3034 of 2000

PETITIONER:

SURAJ PARKASH GUPTA AND OTHERS

RESPONDENT:

STATE OF J & K AND OTHERS

DATE OF JUDGMENT: 28/04/2000

BENCH:

M. JAGANNADHA RAO & A.P. MISRA

JUDGMENT:

JUDGMENT

2000 (3) SCR 807

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. Leave granted in all the special leave petitions.

These Civil Appeals arise out of several writ petitions filed in the High

Court of Jammu & Kashmir in which common judgment was delivered on

14.12.1998. The judgment of the High Court deals with power of Government

to appoint officers on promotion temporarily for periods of more than six

month without consulting the Public Service Commission, grant of seniority

to such promotees in respect of service within their quota and also outside

quota. Validity of the order passed by the State Government on 2.1. 1998

regularising, at one stroke, several ad hoc promotions made between

25.5.1973 to 31.12.1996 was in issue, so far as the Electrical Wing was

concerned. We are concerned only with the regularisation of ad hoc

Assistant Engineers and Assistant Executive Engineers (see Point 2 in the

High Court Judgment). The High Court held that ad hoc/stop-gap service of

promotees could not be regularised. A contention was also raised before us

by the direct recruits that stop gap or ad hoc service of promotees could

never be regularised and only service rendered in a post where a person if

appointed "according to rules" can be regularised and that there was rota

coupled with quota. All the appeals before us have been filed by the

promoted Assistant Engineers.

How the appeal have arisen :

SWP 522/90 was filed in the High Court by the direct recruit Assistant

Engineers of the Mechanical department to fix a seniority and to declare

that they were entitled to the post of Assistant Executive Engineers w.e.f.

the date of their appointment as Assistant Engineers and to treat direct

recruits as senior to respondents 3 to 121 therein (promotees) and to quash

the promotion of respondents 3 to 32 therein as Assistant Executive

Engineers (Mechanical). Similarly SWP. 227/97 and 47/98 were filed by

direct recruit Assistant Engineers (Electrical) seeking the quashing of

Government Order dated 12.12.1997 containing the seniorty list and also to

quash the Government Order dated 2.1.1998 whereby services of several ad

hoc promotee Assistant Engineers of the Electrical wing were regularised.

They sought a further direction for issuing a fresh seniority list and for

promotion as per quota and a direction not to fill up the post of Assistant

Executive Engineers from among promotees' quota till seniority as per quota

was fixed. CWP 1869/97 and 824-B/94 were filed by the direct recruits Civil

Engineers (Hydraulic) for fixing seniority as per the recommendations of

the Committee constituted by the Government by its order dated 31.2.1997

and for a direction not to promote promotee Assistant Engineers as

Assistant Executive Engineers till a final seniority list was prepared.

SWP 705/94 and 777/94 were filed by the promotee Assistant Engi-neers

(Mechanical) to quash the seniority list of Assistant Engineers dated

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28.4.1994 and for issuance of fresh seniority list according to date of

appointment, irrespective of quota. Similar relief was claimed by the

promotee Assistant Engineers in SWP. 377/94. SWP 198/93 was filed by the

promotee Assistant Engineer (Mechanical) claiming seniority over direct

recruits.

The High Court in its impugned common judgment dated 14.12.1998 dismissed

the petitions filed by the promotees namely SWPs 198/93, 705/94, 777/94 and

it allowed the writ petitions filed by the direct recruits Assistant

Engineers namely SWPs 522/90, 824-B/94, 227/97, 1869/97 and 47/98.

the Facts :

The following facts are relevant :

There are three wings of Engineers working in the various Departments of

the Government of Jammu and Kashmir - Mechanical, Electrical and Civil

Engineering. These posts in these three wings at various levels are of

Junior Engineers, Assistant Engineers and Executive Engineers. The

recruitment to the posts of Assistant Engineers, as per the J.K.

Engineering (Gazetted) Service Recruitment Rules 1978 (hereinafter called

the 'Recruitment Rules, 1978') provided that 20% posts were to be filled by

direct recruitment, 60% by promotion of Junior Engineers who had degrees or

equivalent qualification with 3 years service and 20% by Diploma holders or

those holding post carrying scale of Rs. 340-700/450-700 etc. with 10 years

service.

In 1987, with a view to remove stagnation, the Government issued two orders

one on 29.6.87 and another on 29.10.87, the latter in supercession of the

former and re-organised the service as follows : (a) the existing post of

Assistant Engineer was upgraded and re-designated as Assistant Executive

Engineer, to be kept in charge of a sub-Division. The Assistant Engineer

was to work as a Technical officer to the Assistant Executive Engineer in

the sub-division and also to the Executive Engineer in each division. All

the Diploma holders (Section Officers) were to be re-designated as Junior

Engineers. In November 1987, 1116 posts of Assistant Engineers were created

(as held by the High Court) in all the three wings, The Government also

issued SRO 209 of 1992 on 4.9.92, amending the Schedule to the Recruitment

Rules, 1978. The ratio was 20% by direct recruitment, 60% by promotion by

graduate Junior Engineers with 3 years service and 20% by Diploma holder

Junior Engineers with 10 years service etc.

Thereafter, Government issued a large number of orders and officers at

various levels were promoted to the next higher post on an ad hoc basis for

six months. Later Government issued orders continuing these ad hoc/stop gap

appointments till regularisation. This was done without consultation of the

Public Service Commission as required by Regulation 4(d)(ii) of the Service

Commission Regulations, 1957. These orders included some in which several

Junior Engineers were promoted as ad hoc Assistant Engineers in the three

wings of the Engineering Department (and also related to ad hoc promotions

as Assistant Executive Engineers). This was done without follow-ing the

rules for promotion of the Junior Engineers as Assistant Engineers which

required consultation with the J & K Public Service Commission under

section 133 of the J.K. Constitution (corresponding to Article 320 of the

Constitution of India) or other rules. (The promotion as Assistant

Executive Engineer required consultation with DPC). It was case of the

direct recruits, that these ad hoc promotions were made not only against

the 80% (60% plus 20%) quota of the promotees but also in respect of 10% out

of the 20% quota of direct recruits, in total breach of the quota rule.

Direct recruitment was indefinitely delayed to benefit promotee officers

and even when it was initiated, it was restricted to 10%.

It appears that the last direct recruitment in these wings was way back in

1984. It was only on 23.11.87 that the State Government referred to the

State Public Service Commission the matter relating to direct recruitment.

But instead of referring the matter of filing up the quota upto 20%, the

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reference was confined only for 10%. The advertisement was issued by the

Commission on 3.12.87. The respondents before us (who were direct recruit

writ petition-ers in the writ petitions before the High Court) applied for

direct recruitment. But, for a period of 4 years, the commission did not

take any steps to make recommendations. The candidates were interviewed

during 1992-93 and a list of selected candidates was sent to Government for

the 10% quota of direct recruits. It was only after the High Court gave

directions on 22.2.94 in certain writ petitions and on other dates in other

petitions, that the direct recruits were appointed on various dates in 1994

as Assistant Engineers. Some direct recruits were appointed much later. The

direct recruits tiled the various SWPs 522/90, 227/97,47/98, 1869/ 97, 824-

B/94 challenging the ad hoc promotion of the Assistant Engineers made by

Government without consulting the service Commission beyond six months and

contended that continuance of ad hoc stop gap promotion beyond six months

(as per the order issued during 1987 to 1996) was not-est and void and

could not be subject of regularisation. The seniority list cannot show

these ad hoc promotees as seniors to direct recruits. There is rota as well

as quota. They sought the quashing of existing seniority lists and they

asked for issuing fresh seniority lists. On the other hand, the promotee

officers filed SWP 98/93, 705/94 and 777/94 and in the two latter

petitions, the seniority list dated 28.4.94 was questioned to the extent it

was favourable to the direct recruits.

The High Level Committee :

Government appointed a High Level Committee on 21.5.97 to go into the

various issues arising between the direct recruits and promotees. On the

three issues, referred, the Committee gave a Report soon thereafter in

1997. It said that merely because the State Government could not make

direct recruitment due to inaction, the quota rule could not be said to

have broken down. Thereafter, it opined as follows : (1) as and when the

direct recruitment was made, the direct recruits would be entitled to

placement of their seniority to the vacancies reserved for them as per the

ratio. Similarly, where the promotees came to be promoted in accordance

with the rules "in excess of their quota", they could not be given

seniority but should be given seniority only from the respective dates on

which vacancies in their quota were available; (ii) seniority had to be

determined only "from the respective dates on which their respective quota

became available in a particular year" (iii) ad hoc/stop gap appointment

would not entitled an individual to the benefit of seniority from the date

of such ad hoc/stop gap appointment", such service not being according to

rules. The period of officiation could not be taken into account for

seniority. The Continuous length of ad hoc service could not be so counted.

The order dated 2.1.98 by Government regularising promotees services

without consulting P.S.C. :

Ignoring the above report of the above Committee, and without any

recommendation of the Public Services Commission for retrospective

regularisation, the Government issued, during the pendency of the writ

petitions, an order on 2.1.98 so far as the Electrical Wing was concerned,

stating that ad hoc service of officers in various categories (starting for

Junior Engineers to Superintending Engineers) right from 25.5.73 to 18.4.96

would stand regularised at various levels of the service including

Assistant Engineers and Assistant Executive Engineers levels, as a "one

time exception". This order dated 2.1.98 covered several Assistant

Engineers in Electrical Wing wherein ad hoc promotions were made. The

regularisation was ordered subject to.

(a) The seniority of the officers concerned which will be fixed according

to the Rules;

(b) The outcome of writ petition, if any, pending in courts. The writ

petitions '.

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The above order dated 2.1.98 was questioned by direct recruits in the High

Court along with other seniority lists. It was contended for the direct

recruits before the High Court that there was quota and rota, that the

entire ad hoc service was to be treated as non-est, whether it was rendered

within the promotion quota or outside the said quotas and stop gap/ad hoc

service of promotees could not be regularised at all. But the promotees

contended that there was no rota, that the quota rule had broken down and

the entire ad hoc service as Assistant Engineers could be counted or

regularised by the Government.

The findings of the High Court :

The High Court framed three points for consideration. It held on the first

point that promotion to the post in the Gazetted cadre required consul-

tation with the Commission on the question of promotion/transfer from one

service to another and also on the suitability of the candidates for

appoint-ment, promotion and transfer; that under the J.K. Service

Commission, Regulation 4(d)(ii), officiating promotion or transfer to any

service or post, should not be for more than six months, unless the

Commission was consulted and that the orders for such ad hoc continuance

beyond six months and till regularisation, without consultation, were

ineffective. It held that the quota rule and not broken down. The posts

were advertised in 1987, but it was only in 1993, 1994 and in 1998 that the

direct recruits were appointed in the three wings, and that in the Civil

Mechanical and Electrical Wings 7, 16 and 20 posts were under excess

occupation by the promotees and these posts were not filled by direct

recruitment because the Government directed advertise-ment of only 10% and

not 20% for direct recruits. It was held that in SWP 824-B/94 filed by

direct recruits, Government filed a reply stating that there was 'quota

rota' rule and therefore the said Rule applied. The seniority list dated

28.4.94 in the Mechanical Wing - which was sought to be quashed in SWP

705/94 by the promotees showed that the quota rule had not broken down. The

State had not placed before the Court any material to show why it could not

make direct recruitment. The excess promotees had to be pushed down and had

to be fitted in subsequent vacancies in their quota in later years. On the

second point, the High Court held that ad hocpromotions could be made for

three months and not more than 9 months under rule 14(1) of the J & K Civil

Service (Classification Control and Appeal) Rules, 1956 (read with

Regulation 4(d)(ii) of the J & K Public Service Commission (Limitation of

Functions) Regulation 1997). Ad hoc service beyond 6 months could not have

been continued. But, in view of Regulation 4(d)(ii), "if the exercise of

selection of candidates has not been done by the Commission for regulari-

sation" the promotees were not entitled to seniority. Under Rule 8 of the

Recruitment Regulations, 1978 probation was to be for 2 years. Hence, ad

hoc promotee could not be a 'member' of the service. To claim seniority the

promotion could not be de hors the Rules. Conditions of service could be

relaxed but rules of recruitment could not be relaxed. The order of blanket

regularisation of the promoted Assistant Engineers dated 2.1.98 for the

Electrical Wing passed by the Government was in violation of Regulation

4(d)(ii) was bad. Such orders passed under executive powers were outside

the Rules and were invalid. On the third point, the High Court held that

seniority under Rule 11 of the 1978 Rules was to be determined in

accordance with Rule 24 of the 1956 Rules on the basis of 'date of first

appointment' i.e. date of "substantive appointment or date of permanent

appointment or date of first appointment on probation against a clear

vacancy". In as much as regulari-sation of ad hoc promotions by the

Government on 2.1.98 was illegal, the promotees were not members of the

service. The order dated 2.1.98 could not have the effect of regularising

the entire ad hoc service. The direct recruits could however count their

seniority from the date of their substantive appointment within their

quota. However, the claims of the promotees whose stop gap promotion

exceeded six months without consultation of the Com-mission should be

referred to the Commission "for determining their suitabil-ity". The

seniority was to be fixed for direct recruits and promotees in terms of the

quota-rota rule, within their respective quota in the particular year.

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Stay orders in their Courts :

In this Court notice in SLPs was issued on 7.4.1999 and the order of the

High Court was stayed. But then a further order was passed on 12.5.99 in

IAs. 3 & 4 in SLPs 5329-5330/99 that the stay order dated 7.4.99 did not

imply any right to effect promotion during the pendency of the SLPs. It was

directed that status quo be maintained.

During the course of hearing of the case, at one stage counsel made some

efforts to narrow done the disputes between the two groups by discussion

but ultimately all the points arising between the parties were argued

elaborately and thoroughly.

The written submissions by both parties covered as many as sixty rulings of

this Court. Having regard to the vehement argument before us and also in

order to explain the various decisions, - which may appear to be apparently

conflicting - we have thought it necessary to refer to most of the relevant

rulings. This has no doubt added to the volume of this judgment but it

could not be helped.

On the basis of the various submission, the following points arise for

consideration :

The Points :

(1) Can the promotees, for recruitment to the gazetted service, avoid the

Service Commission? Can the Government order that the entire ad hoc/ stop

gap service of Assistant Engineers and Assistant Executive Engineers is to

be counted for seniority and can the order of regularisation dated 2.1.98

passed by Government (in respect of the Electrical Wing) be treated as

amounting to an implied relaxation of the rules of recruitment requiring

consultation with the Service Commission? Whether relaxation of recruitment

rule is permissible?

(2) Whether the quota rule had broken down? Whether excess promotees are to

be pushed down? Whether there is a quota-rota rule?

(3) Whether the ad hoc/stop gap promotion of Assistant Engineers (and

Assistant Executive Engineers) could be made beyond six months and till

regularisation, by Government without consulting the Public Service Com-

mission? Whether Government could have regularised the ad hoc service by

executive order dated 2.1.98? Whether, the point raised in para DC of

written submissions by the direct recruits that retrospective

regularisation cannot be made in respect of the ad hoc stop gap service and

could be made only if the initial appointment as Assistant Engineers or

Assistant Executive Engi-neers was "in accordance with rules", is correct?

(4) Whether the direct recruits could claim a retrospective date of

recruitment from the date on which the post in direct recruitment was

available, even though the direct recruit was not appointed by that date

and was appointed long thereafter?

(5) To what relief? Point 1 :

This point deals with the question whether the promotees can avoid going

through the Service Commission for recruitment to the gazetted cadre? This

raises the question of the validity of the order dated 2.1.98 of retrospec-

tive regularisation of entire ad hoc service of promotees as Assistant

Engi-neers and Assistant Executive Engineers passed by the Government, (in

relation to the Electrical Wing) without the approval of the Public Service

Commission and whether relaxation can be implied. Question arises whether

it is permissible to relax recruitment rules?

Implied relaxation of recruitment rule relating to promotion - plea as to

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Learned senior counsel appearing for the promotee Assistant Engineers

contended that the order dated 2.1.98 regularising the ad hoc/stop gap

service passed by Government, even if it be without the concurrence of the

Com-mission, could be treated as one passed by the Government by impliedly

"relaxing" the Service Commission Regulation requiring consultation with

the Commission. Provisions or Article 320 requiring consultation with the

Com-mission (here Section 1-33 of the J & K Constitution), were not

mandatory. When promotees had put in long years of services, it was

permissible for the State to relax the recruitment rule and regularise the

service outside the PSC Regulations. It was to be deemed there was

relaxation. This contention was contested by the learned senior counsel for

the respondents.

The Rules :

For the purpose of the above argument, the promotees relied on the

following rules :

Rule 13 of the 1978 Recruitment Rules states that in respect of residuary

matters, (i.e. 'matters not specifically covered by the said Rules), the

members of the service shall be governed by the rules, regulations and

orders applicable to the State/Civil Services in general. Therefore, Rules

5 of the J & K Civil Service (CCA) Rules, 1956 is attracted. It permits

relaxation of the Rules. It reads :

"Rule 5 : Any of these rules or rules made under them, may or reasons to be

recorded in writing, be relaxed by the government in individual cases, if

Government is satisfied that a strict application of the rule would cause

hardship to the individual concerned or confer undue benefit on him".

Further, Rule 5(4) of the Recruitment Rules, 1978 states that : In case

suitable candidates are not available for promotion, the posts shall be

filled up by direct recruitment and vice versa'. In view of the words 'vice

versa', the promotees contend that if suitable direct recruits are "'not

available", the direct recruit quota can be filled up by promotees. Direct

recruitment was not made for several years and hence it was clear that

suitable direct recruits were "not available" as required by proviso to

Rule 5(4) of the Recruitment Rules, 1978.

The quota between direct recruits and promotees is governed by Rule 5(2) of

the 1978 Rules which states that appointment to a service shall be made by

(a) direct recruitment (b) by promotion/selection and (c) partly by direct

recruitment and partly by promotees, in the manner and ratio as indicated

against each post in the Schedule. The quota of 20% for direct recruits

Assistant Engineers and 60% for graduate Junior Engineers and 20% for non-

graduate in the lower category is provided in the Schedule. Further, Rule

11(1) of the above said Rules of 1978 states that seniority will be

regulated under the provisions of the J & K Civil Service (Classification,

Control and Appeal), Rules 1956. The proviso to Rule 11(3) states that the

seniority in a particular year is to be determined as per ratio. It says :

"Provided further that the seniority of Assistant Engineers by direct

recruitment and by promotion shall, in a particular year be determined, in

the ratio fixed for direct recruitment and promotion.

The relaxation Rule, namely, Rule 5 of the 1956 J & K CCA Rules, 1956

referred to earlier, enables the power of relaxation to be exercised on the

ground of "hardship" in "individual cases". Reasons have to be recorded in

writing.

Reasons for so called relaxation of recruitment rules - Cabinet decision of

19.12.97 :

As to the reasons for relaxation of recruitment rule of promotion requiring

consultation with the Commission, counsel for promotees referred us to the

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Cabinet decision preceding the issuance of the blanket regulari-sation

Order dated 2.1.98. It is dated 19.12.97. We have to examine the reasons

stated in the Cabinet decision and find out if adequate reasons have been

given. It was stated there that in view of Court litigation, there used to

be delay in finalising seniority lists and that this had resulted in

officers retiring at lower levels and getting financial/promotional benefit

only after retirement. The finalisation of seniority lists and the

reference of the promotees' cases to the P.S.C./D.P.C. would take fairly

long time to be completed. It was felt that it would definitely be

preferable if the confusion, was cleared once and for all. At the level of

Assistant Engineers, 574 were on ad hoc promotion and at the level of

Assistant Executive Engineers there were 401, requiring regularisation.

This view was supported by the Law Department and it said that undue delay

had adversely affected the promotees and the only remedy was to regularise

their promotion in relaxation of rules from the date they were promoted on

ad hoc basis against substantive vacancies without prejudice to seniority

to be fixed in accordance with the "rota and quota" rules. It opined that

all those who had held the post uninterruptedly for 6 months (originally

Law Department said 2 years) or more and had rendered "satisfactory

service" could be regularised in relaxation of rules. But the General

Administration Department was however of the view that this relaxation

proposal should be placed before the PSC/DPC and clearance obtained. The

matter was therefore referred to PSC which instead of considering the

proposal, requested by its letter dated 25.11.97 for various documents (1)

final seniority lists; (2) eligibility list on prescribed form, (3) APRs of

all Engineers for the relevant period, (4) integrity certificate and (5)

information regarding Court orders and (6) Copy of Rules, for the purpose

of considering regularisation under the Rules. But rejecting the said

letter of the PSC, the Cabinet straightaway directed relaxation as a one

time exception', stating that :

"due to the reasons that the finalisation of seniority list, collect-ing

APRs of all engineers for the relevant period, obtaining date of

eligibility/date of vacancy, one is expected to take a very long time and

may even be impossible in very old cases. When this Department places these

engineers in charge of higher posts, there must have been clear vacancies.

Hence, information required by the PSC cannot be prepared and the matter

would stand further delayed, defeating the very purpose of this proposal.

Accordingly, it is proposed that regularisation of all ad hoc/stop

gap/incharge promotions, may be approved as a "one time exception".

On the above reasoning, by a single stroke of pen, by the above order dated

2.1.98 such stop gap/ad hoc promotions made in respect of the Electrical

Wing, from time to time were regularised including those at the level of

Assistant Engineers and Assistant Executive Engineers. It was no doubt

stated that this would be subject to.

"(a) The seniority of the officers concerned which will be fixed according

to the Rules;

(b) the outcome of writ petitions, if any, pending in the courts".

It may be noted that the order of Government dated 2.1.98 does not however

use the word "relaxation" though the Cabinet proceedings use the said word.

The above order was issued after the writ petitions were filed by the

direct recruits. This order too was questioned by them by amending the

relief in their writ petitions.

Relaxation Rules - scope of : If recruitment rules can be relaxed : A

previous view :

Some relaxation rules permit relaxation of conditions of service and some

permit relaxation of rules. Some permit relaxation in any particular case

and some permit relaxation in favour of a person or class of persons. In

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J.C. Yadav v. State of Haryana, [1990] 2 SCC 189, a three Judge Bench while

dealing with Rule 22 of the relevant rules which permitted relaxation, in

case of hardship, in "any particular case", held that the above words did

not mean a particular person but meant "pertaining to an event, situation

or circumstances". The power could therefore be exercised even in favour of

a group.

Two earlier decisions :

Promotees relied upon the ruling in Q.S. Lamba v. Union of India, [1985] 2

SCC 604 but the said decision cannot, in our view, apply. There the

promotees were appointed regularly but were allowed to occupy the posts of

direct recruits, for long periods. It was held that it must be deemed that

the relevant recruitment rule was relaxed in their favour and their service

in such direct recruit posts could be counted. This case in our view is

distinguishable because there the promotees were regular promotees though

appointed outside the promotee quota. The position before us is different

because here the promotees are ad hoc promotees and further the issue

relates to all posts, within the outside promotion quota. Narender Chadda

v. Union of India, [1986] 2 SCC 157 no doubt supports the case of

promotees. There the promotees occupied not only their own quota but also

the direct recruitment quota to some extent. After 15 to 20 years, the

temporary service of those who had put in 4 years service in the feeder

category was regularised. It was held that all the promotees were entitled

to regular promotion and the seniority of all promotees (including some of

those selected by DPC) was to be reckoned from date of continuous

officiation. This was done on the theory of implied relaxation of

recruitment rule to all posts within and outside the promotion quota. But

this case, in our view, is to be treated as an exception because the

promotees there were not regularised for is 15 to 20 years (see p. 171) and

it was held that the non-regularisation over such a long period violated

Articles 14 and 16 of the Constitution of India. It is no doubt true that

the Constitution Bench in the Direct Recruit Class II Engineering Officers

Assistant v. State of Maharashtra, [1990] 2 SCC 715 referred to Narender

Chadda's case at p. 726 and it observed : "There is considerable force in

this view also" but as we shall presently show, the recent trend of cases

in this Court is entirely different. Recent trend of cases : Recruitment

rules cannot be relaxed :

The decisions of this Court have recently been requiring strict conformity

with the recruitment rules for both direct recruits and promotees. The

view-is that there can be no relaxation of the basic or fundamental rules

of recruitment. In Keshav Chandra Joshi v. Union of India, [1992] Suppl 1

SCC 272 the Rule permitted relaxation of conditions of service and it was

held by the three Judge Bench that the rule did not permit relaxation of

recruitment rules. The words 'may consult the PSC' were, it was observed,

to be read as 'shall consult PSC' and the rule was treated mandatory. In

Syed Khalid Rizvi v. Union of India, [1993] Suppl. 3 SCC 575 at 603,

decided by a three Judge Bench, a similar strict principle was laid down.

The relevant Rule -Rule 3 of the Residuary Rules (see p. 603) (para 33) in

that case did permit relaxation of "rules" Even so, this Court refused to

imply relaxation of recruitment rule and observed :

"the condition precedent, therefore, is that there should be appointment to

the service in accordance with rules and by operation

of the rule, undue hardship has been caused,......It is already held"

that conditions of recruitment and conditions of service are distinct and

the latter is preceded by an appointment according to Rules. The former

cannot be relaxed".

Similarly, in State of Orissa v. Sukanti Mohapatra, [1993] 2 SCC 486, it

was held that though the power of relaxation stated in the rule was in

regard to 'any of the provisions of the rules', this did not permit

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relaxation of the rule of direct recruitment without consulting the

Commission and the entire ad hoc service of direct recruit could not be

treated as regular service. Similarly, in Dr. MA. Hague v. Union of India,

[1993] 2 SCC 213 it was held that for direct recruitment, the rules

relating to recruitment through the Public Service Commission could not be

relaxed. In Jammu and Kashmir Public Service Commission v. Dr. Narinder

Mohan, [1994] 2 SCC 630 it was held that the provisions of the J & K

Medical Recruitment Rules could not be relaxed for direct recruitment.

Backdoor direct recruitments, could not be permitted. See also Dr.

Anundhati Ajiti Pargaonkar v. State of Maharastra, [1994] Suppl. 3 SCC 380.

In Dr. Surinder Singh Jamwal and Anr. v. State of J & K, [1996] 9 SCC 619,

this Court directed the direct recruits to go before the Public Service

Commission.

Decisions cited for promotees distinguishable : Two decisions which have

been referred to by counsel for promotees have to be referred to but these

can be distinguished. In V. Sreenivasan Reddy v. Govt. of A.P., [1995]

Suppl 1 SCC 572 there was an order of relaxation in favour of the promotees

who were not regularised under Rule 23 of the A.P. State and Substantive

Service Rules. In that case this Court felt that the Government's order

relaxing the requirement of consultation with the Com-mission need not be

interfered with because the promotees were placed by the Government below

the direct recruits. This case is therefore clearly distinguishable. (We

shall be referring to this case again under Point 3). Again in Ashok Kumar

Uppal v. State of J & K, [1998] 4 SCC 179 while holding that the power of

relaxation could not be arbitrarily exercised, this Court upheld the

relaxation of the relevant standard prescribed for typing, in respect of

five direct recruits. This was because the State Recruitment Board in that

case had made a recommendation for relaxation of the requisite standard in

their favour and this was accepted by the Govt. The relaxation was upheld

because Government had retrospective amended the promotion rule so that

promotees could just go into promotion quota by sheer seniority rather than

by selection as was the rule earlier. The five direct recruits were very

close to the other selected direct recruits and were more meritorious than

the promotees.

Summary :

The result of the discussion, therefore, is that the wholesale regulari-

sation by order dated 2.1.1998 (for the Electrical Wing), by way of implied

relaxation of the recruitment rule to the gazetted category is invalid. It

is also bad as it has been done without following the quota rule and

without consulting the Service Commission. Further, power under Rule 5 of

the J & K CCA Rules, 1956 to relax rules cannot, in our opinion, be treated

as wide enough to include a power to relax rules of recruitment.

On facts, relaxation bad :

On facts, the reasons given in the Cabinet note for granting relaxation are

hopelessly insufficient. In fact, the letter of the Commission date

25.11.97, shows that the Commission was prepared to give its opinion in

regard to regularisation of each promotee but the Government backed out

when the Commission called for the records relevant for considering

suitabil-ity for regular promotion, in our view, there can be no hardship

for a person seeking appointment or promotion to go by the procedure

prescribed therefor. The relevant recruitment rule for promotion cannot

itself be treated as one producing hardship. Narender Chadda' case must be

treated as an exception and not as a rule. In fact, if such relaxation is

permitted in favour of promotees then the same yardstick may have to be

applied for direct recruits. In fact the J.K. Government has already

started to do so and this has not been accepted by this Court in Narender

Mohan's case and Dr. Surinder Singh Jamwal's case referred to above. If it

is to be held that direct recruitment can also be permitted without

consulting the Service Commission (in cases it is required to be consulted)

there will, in our opinion, be total chaos in the recruitment process and

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it will lead to backdoor recruitment at the whims and fancy of Government.

Such a blanket power of relaxation of recruitment rules cannot be implied

in favour of the Government.

In the present case, the Government was merely carried away by sympathy to

the promotees. By not making direct recruitment after 1984, by restricting

direct recruits to 10% rather than permitting 20% and by delib-erately

promoting the Junior Engineers to the other 10% quota of the direct

recruits, the State Government had definitely acted in a biased manner.

There is any amount of justification for the grievance of the direct

recruits that the State had passed an omnibus order on 2.1.98 regularising

all ad hoc promotees (Electrical Wing) without consulting the Commission,

by way of deemed relaxation, in a wholly arbitrary manner, counting the

entire ad hoc service of promotion. Their illegal occupation of direct

recruitment quota was not even noticed. Their eligibility or suitability

was not considered. It is probable that even those who had bad ACRs were

regularly promoted. The requirement of following quota for each year was

not respected. The regularisations order dated 2.1.98 was therefore bad and

was therefore rightly quashed by the High Court. (This declaration is

confined to Assistant Engineers and Assistant Executive Engineers

(Electrical Wing) - as stated under Point No. 2 of the High Court Court's

judgment). We confirm the view of the High Court on this point. The result

is that the promotees have to go through the Service Commission for getting

into the gazetted category of Assistant Engineers. The Assistant Engineers

have to go through DPC for promotion as Assistant Executive Engineers.

Point 1 is decided accordingly.

Point 2 :

This point concerns the question as to whether the quota rules has broken

down and whether there is a quota-rota rule. The High Court held it did

not.

Reliance is placed by the promotees on the decision of the Consti-tution

Bench in Direct Recruit Class II Engineering Officers' Association v. State

of Maharashtra, [1990] 2 SCC 715. It laid down in proposition D & E as

follows :

(D) If it becomes impossible to adhered to the existing quota rule, it

should be substituted by an appropriate rule to meat the needs of the

situation. In case, however, the quota rule is not followed continuously

for a number of years because it is impossible to do so, the inference is

irresistible that the quota rule had broken down.

(E) When the quota rules has broken down and the appointments are made from

one source in excess of the quota, but are made after following the

procedure prescribed by the rules for the appointment, the appointees

should not be pushed down below the appointees from the other source

inducted in the service at a later date.

The above decision deals with a situation where the quota rule has broken

down and regular promotees whose service are regularised are posted in the

direct recruitment quota. In that event, it is permissible to count that

service for purpose of seniority of the promotee. But, that is the position

when the quota rule breaks down.

Quota rule has not broken down :

On the question of breakdown of quota rule, except the lethargy of the

State Government and its inaction and its not asking the Service Commission

to make direct recruitment, no other cause is visible. The Cabinet note

only stated that because reference to PSC would take a long time, the ad

hoc services of promotees were to be regularised. The delay on part of the

Government appears to us to be motivated for the purpose of blocking the

quota of the direct recruits and giving a part of it to promotees. We have

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noticed that when a very belated decision was taken to make direct recruit-

ment, the same was restricted to 10% rather than to the statutory quota of

20%. This attitude on the part of the State was not reasonable.

Further under Rule 5(4) of the Recruitment Rules, 1978 it is provided that

in case suitable candidates are not available for promotion, the posts

shall be filled up by direct recruitment and vice-versa. Thus, there must

be evidence that suitable candidates were "not available " for direct

recruitment. Such non-availability cannot be interred when, as a fact, not

even a reference is made to the commission to find out if upon

advertisement, anybody will respond. Thus there is no breaking down of the

quota rule.

That in such situations there can be no break down of the quota rule is

clear from decided cases. In N.K. Chauhan v. State of Gujarat, [1977] 1 SCC

308, the rule said that 'as far as practicable', the quota must be

followed. Krishna Iyer J. said that there must be evidence to show that

effort was made to fill up the direct recruitment quota. It must be

positively proved that it was not feasible, nor practicable to get direct

recruits. The reason should not be 'procrastinary'. In Syed Khalid Rizvi v.

Union of India, [1993] Suppl. 3 SCC 575, it was held that mere non-

preparation of select list does not amount to collapse of the quota rule.

In M.S.L Patil v. State of Maharashtra, [1996] 11 SCC 361 it was held that

mere omission to prepare lists did not amount to break down of quota rule.

One other significant fact is that the Cabinet note dated 19.12.1997 only

States that cases of the ad hoc promotees" if referred to PSC, will take a

long time for getting the necessary recommendation. But no where it is said

that direct recruitment was not possible nor that direct recruits were not

available or such recruitment had became impracticable. For the aforesaid

reasons, we hold that the quota rule has not broken down.

Rota : no express rota rule :

We shall next refer to the contention for the direct recruits that "rota-

quota" rule is to be applied. Before us, it is not disputed by the learned

counsel for the direct recruits that in the Recruitment Rules, 1978, there

is only a quota rule and that no rota rule has been expressly prescribed.

Question is whether 'rota' can be implied?

The direct recruits contend that rota is to be implied or read into the

'quota' rule. It is also argued that there has been a previous practice of

applying a rota and that this fact stands conceded in the counter-affidavit

filed by the Government in SWP. 824-B/94. Reliance is also placed on

Cabinet note of December, 1997 where the view of the Law Department that

quota-rota rule is to be applied, is referred to.

In our opinion, in view of the admission before us by all parties that

there is no express rota rule, the decision of the High Court that 'rota'

principle applied cannot be upheld. As held in N.K. Chauhan v. State of

Gujarat, [1977] 1 SCC 308, by Krishna Iyer, J. there is no question of a

quota being necessarily 'inter-locked' with rota. It is not necessarily

inscribed within every quota rule. Again in B.S. Yadav v. State of Haryana,

[1991] 1 SCR 1024. Chandrachud, CJ held that a 'quota' does not imply a

rota. The first part of the contention of the direct recruits is without

any substance.

Rota cannot be brought in because only of past practice :

So far as second part of the contention that there has been previous

practice, we may refer to L Chandrakishore Singh v. State of Manipur,

(1999) 7 SC 576 (p. 592). There it was held that a practice must be

consistent with Rules and that a practice not consistent with rules is not

acceptable. In that case, the practice of not considering for promotion

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probationers and consid-ering only confirmed candidates was, held not

consistent with the Rules and could not be permitted. Similarly, in D.

Stephen Joseph v. Union of India, [1997 4 SCC 753 it was held that a past

practice which was de hors a rule could be of no help. The question in that

case was as to whether the requirement of particular years of service with

graduation for promotion meant service after graduation or service during

which a degree qualification was acquired. A practice of counting three

years after obtaining qualification was not accepted. In that view of the

matter, the second part of this contention also goes.

Hence, it must be held that there is no rota couple with quota but that

there is only a quota rule. Point 2 is decided accordingly.

Points 3:

This point is crucial. The point here is whether the Government could have

continued the ad hoc/stop gap service of promotees beyond six months and

till regularisation without consulting the Commission and whether

Government could have regularised without such consultation. Point also is

whether as contended in para IX of the written submissions of the direct

recruits, the retrospective regularisation of the service of the promotees

is not permissible unless the original promotion is "in accordance with

rules"?

Ad hoc/stop-gap service beyond six months require P.S.C. consent. Govern-

ment cannot regularise the period without consultation.

In our view, the High Court was right to the extent it held that the rules

did not permit continuance of the ad hoc/stop gap promotion beyond six

months and the Government could not have continued the ad hoc/stop gap

promotion till regularisation without consulting the Commission. This is

clear from Regulation 4(d)(ii) already referred to. The High Court was also

right in holding that the Government could not have also passed any orders

such as the one dated 2.1.98 of regularisation of the entire ad hoc service

without consulting the Commission.

Regularisation of ad hoc/stop-gap service under Rule 23 : The contention of

direct recruits and the High Court's view :

Here, two important findings given by the High Court have to be referred

to. The High Court at one stage observed as follows: if the exercise of

selection of candidates has not been done by the Commission for

regularisation of ad hoc promotees' for substantive promotions, in that

event, without consultation of the Commission, the regularisation of ad hoc

promotions is in violation of Regularisation 4(d)(ii) framed under the

constitutional provision contained in section 133 or the Constitution of

Jammu and Kashmir". This would mean that the High Court in a way accepted

that services of such promotees could be regularised if the Service

Commission was consulted.

But the High Court again stated at a later stage that the ad hoc/stop gap

service rendered by promotees could not be regularised and for that

proposition it relied upon several rulings of this Court. But those

decisions, as we shall show a h'ttle later were cases where it was held

that a direct recruit could not count his ad hoc service rendered prior to

the date of selection. Those rulings cannot be applied, as shown below, to

the cases of promotees for holding that ad hoc stop gap service of the

promotees could not be regularised. If the High Court meant that such

service could not be regularised under Rule 23 at least to the extent when

vacancies arose in the promotee quota, subject to eligibility and

suitability of the promotees based on ACRs etc. - we are of the opinion,

for reasons to be given below, that the said view of the High Court is

wrong and runs counter to overwhelming authority of this Court that such

service of promotees could be regularised in the posts relatable to the

promotee quota provided the PSC/DPC was consulted and subject to

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eligibility etc.

Perhaps based on the above view of the High Court, the direct recruits have

raised a point in their written submissions in para ix as follows :

"Even where rules permit antedating of probation, the service rendered in

stop-gap arrangement cannot be counted towards sen-iority. Discretion to

antedate- appointment can be exercised only where initial appointment is

according to rules. Even a rule that permits regularisation of service

retrospectively, does not entitle counting of stop gap service towards

seniority."

Rules relating to retrospective regularisation permit regularisation of ad

hoc/stop gap service of promotees :

For the purpose of deciding the point, it is necessary to refer to other

rules relevant on the question of regularisation. Rule 2(e) of the

Recruitment Rules, 1978 defines "Member of Service" as a person appointed

to a post in the service under the said rules. Under rule 5 of the said

Rules which deals with "Qualification and method of recruitment", it is

stated in sub-clause (1) that one must possess the qualifications stated in

the schedule for appointment or promotion. Clause (2) refers to

'appointment' to a service to be made by (a) direct recruitment, (b) by

promotion/selection and (c) partly by direct recruitment and partly by

promotion. Rule 8 of the 1978 recruitment Rules deals with 'probation' and

states that persons 'appointed' against substantive vacancies, whether

directly or by promotion, to any class, or category in the service shall be

on probation for two years and their confirmation shall be regulated by the

provisions of the J & K (Civil Services (CCA) Rules, 1956. Rule 11 (1) of

the same Rules refers to seniority to be regulated by J & K Civil Services

(CCA) Rules, 1956. The second proviso to Rule 11(3) of the 1978 Rules

requires that "seniority of Assistant Engineers appointed by direct

recruitment and by promotion shall, in a particular year, be determined, in

the ratio fixed for direct recruitment and promotion". It is to be noticed

that these Recruitment Rules, 1978 for Engineers do not speak separately of

recruitment by transfer. They only speak of direct recruitment and

promotion. Even the schedule when it deals with 60% quota for graduate

Junior Engi-neers and 20% quota for non-graduate, the word used is

'promotion'.

But under the J & K Civil Service (CCA) Rules, 1956, Rule 2(e) defines

'member of service' as a person holding or appointed to a whole time

pensionable post. Rule 2(f) defines 'period of probation' of a member of

service as the period prescribed in the rules. Rule 2(g) defines 'proba-

tioner' as a person appointed to a service who has not been declared to

have satisfactorily completed his probation. Rule 2(h) defines 'promotion'

as the "appointment" of a member of a service or class or service in any

category or grade, to a higher category or grade of such service or class.

Rule 2(i) defines a person "recruited direct' as one recruited otherwise

than by promotion or by transfer. Rule 2(i) defines Recruitment by transfer

as one where at the time of his 'appointment' thereto, he is either a

member/ probationer in another service. Rule 9 refers to 'first

appointment' as (a) one by promotion or by transfer and (b) by direct

recruitment or (c) partly by (a) or partly by (b). Rule 14(1) deals with

'temporary appointment' not exceeding three months at a time and under Rule

14(3), the temporary appointee is to be replaced by a member of the service

or a candidate qualified and considered fit to hold the post under the 1956

Rules. Rule 14(4) says that a temporary appointment will not be regularised

as a probationer nor will he have any preferential claim for future

appointment. Rule 15, which follows rule 14 permits commencement of

probation from an anterior date and it reads as follows :

"Rule 15: If such person is subsequently appointed to such service, class

or category in accordance with these rules, he shall commence his probation

therein from the date of such subsequent appointment or from such earlier

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date as may be determined by the Minister-in-charge."

Thus a person temporarily appointed under Rule 14 can be appointed to the

service according to rules from an anterior date. Rule 20 states that no

person shall be eligible for confirmation as a member of a service or

class, until he has been on probation in such service or class continuously

or in the aggregate for a period of two years. Rule 22 deals with

declaration of completion of probation. Rule 23 is again important and

deals with 'appoint-ment of Members' with retrospective effect. It reads as

follows :

"Rule 23 : (1) A probationer shall, if a substantive vacancy in the

permanent cadre of the category for which he was selected exists, be

appointed to the service at the earliest possible opportunity in the order

of seniority, and if such vacancy existed from a date previous to the issue

of the order of appointment, he may be so appointed with retrospective

effect from such date or, as the case may be, from such subsequent date

from which he was continuously on duty as a member of the service."

Under Rule 23, whenever probation is commenced in respect of an officer, it

is permissible to appoint him to the service with retrospective effect from

such date from which the person was "continuously on duty as a member of

the service". Read with Rule 2(e) which define "member of service' it means

the time from which he was "continuously holding the pensionable post".

Rule 23 does not make any distinction between different modes of

recruitment. It is well settled that in the case of a direct recruit, the

probation commence only from a date after his selection and he can hold a

permanent vacancy only after such selection. According to service jurispru-

dence (see in fact, discussion under Point 4), a direct recruit cannot

claim appointment from a date much before his selection. So far as a

promotee and also one who is recruited by transfer, are concerned, before

such persons are appointed as members of the service under Rule 23, first

their probation must commence. Then such person becomes a probationer for

purposes of rule 23. Once he is on probation, and if a substantive vacancy

in the permanent cadre existed in which the promotee or a recruitee by

transfer can be accommo-dated, and if such a vacancy has arisen from a date

previous to the issue of the order of appointment (i.e. appointment by

promotion or transfer) then under Rule 23 had may be appointed to the

service (i.e. regularly) with retrospective effect from such anterior date

(or, as the case may be, from such subsequent date) from which (he has been

continuing on duty on a non-pensionable post [see 2(e)] defining "member of

service'). This period can certainly be one that a person holds in a stop

gap or ad hoc manner. The order of "promoting a person in the service'

regularly from an anterior date and the order of probation from an anterior

date can be simultaneously passed. That is how under Rule 23, a person

holding a temporary, stop-gap or ad hoc appointment beyond three months can

become a probationer and get appointed regularly to the service with

retrospective effect.

Then comes the Rule of 'Seniority'. Seniority is to be determined by the

'date of first appointment' to such service, class or category or grade. It

reads as follows : "Rule 24 - Seniority : (1) The seniority of a person who

is subject to these rules has reference to the service, class, category and

grade with reference to which the question has arisen. Such seniority shall

be determined by the date of first appointment to such service, class,

category or grade, as the case may be."

Note 1:

Interpretation : The words "date of first appointment" occurring in the

above rule will mean the date of first substantive appointment, meaning

thereby the date of permanent appointment or the date of first appointment

on probation on a clear vacancy, confirmation in the latter case being

subject to good work and conduct and/or passing of any examination or

examinations and/or tests.

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Provided that the inter-se seniority of two or more persons appointed to

the same service, class, category or grade simultane-ously, will,

notwithstanding the fact that they may assume the duties of their

appointments on different dates by reason of being posted to different

stations, be determined;

(a) in the case of those promoted by their relative seniority in the lower

service, class, category or grade;

(b) if the case of those recruited direct (except those who do not join

their duties when vacancies are offered to them) according to the positions

attained by and assigned to them in order of merit at the time of

competitive examinations or on the basis of merit and ability and physical

fitness etc., in case no such examination is held for the purpose of making

selections;

(c) as between those promoted and recruited direct, by the order in which

appointment have to be allocated for promotion and direct recruitment as

prescribed by the rules.

Note...............,...............

It has to be noticed that the interpretation clause below Rule 24 is very

wide and under that provision, seniority of a promotee depends on the date

of the commencement of probation on a clear vacancy. Probation can be

commenced in the case of a person promoted or recruited by transfer from

the date of existence of a clear vacancy in the promotee/transfer quota and

depending upon his eligibility, suitability based on ACRs.

Rule 25 deals with temporary and regular promotions. It reads as follows :

"(1) All promotions shall be made by the appointing authority.

(2) Promotions to a service or class or to a selection category or grade in

such service or class shall be made on grounds of merit and ability and

shall be subject to the passing of any tests that Government may prescribe

in this behalf, seniority being considered only where the merit and ability

are approximately equal.

(3).....................................................

(4) where it is necessary in the public interest owing to an emergency

which has arisen and could not have been foreseen, to till immediately a

vacancy by promotion from a lower category, and where promotion in

accordance with these rules would involve undue delay or expendi-ture or

cause administrative inconvenience, the appointing authority may promote a

person otherwise than in accordance with these rules temporarily until a

person is prmoted in accordance with these rules, but such temporary

promotion shall in no case exceed three months on each occasion.

(5) A person promoted under sub-rule (4) shall not be entitled by reason

only of such promotion to any preferential claim to future promotion."

A point has been raised by the direct recruits that there is no Rule

(corresponding to Rule 15) for commencing probation retrospectively in the

case of a person promoted or recruited by transfer temporarily under rule

25.

It is true that while Rule 15 permits probation to be commenced from an

anterior date in the case of one 'appointed' temporarily there is no such

clause in Rule 25 dealing with 'promotions'. That does not, in our opinion,

mean that in respect of a person temporarily appointed by transfer,

probation cannot be commenced from an anterior date. In our view, this

power is implicit in Rule 23 itself when it speaks of a probationer being

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appointed as a member of a service with retrospective effect. Once a

promotee or recruitee by transfer is appointed on probation, it is

permissible to appoint him under Rule 23 as a member of the service from an

anterior date when a substantive vacancy existed in his quota. It is then

obvious that such power to make a retrospective appointment of a member

implies a power to commence probation of such person from an anterior date

when a clear vacancy existed in his quota. We cannot imagine that the Rule-

making authority did not visualise delays in regularisation of ad hoc or

stop-gap or temporary service rendered by promotees or those recruited by

transfer and kept in mind delay only in cases of appointments under Rule

14.

Thus, the stop-gap/ad hoc or temporary service of a person appointed by

transfer as an Assistant Engineer or by promotion as an Assistant Executive

Engineer can be regularised through PSC/DPC from an anterior date in a

clear vacancy in his quota, if he is eligible and found suitable for such

transfer or promotion, as the case may be, and his seniority will count

from that date.

Should the services proposed to be reguarised have been rendered according

to rules?

We then come to the crucial point (point IX in written submissions) raised

by the direct recruits that if the appointment of a promotee as Assistant

Engineer is not according to rules but is a stop gap or ad hoc appointment

and if it lasts more than 6 months, it requires consultation with the

Commission under Regulation 4(d)(ii) of the P.S.C. Regulations and if there

is no consultation such service is 'not according to rule' and cannot be

regularised, i.e. even by consulting the Service Commission at a later

stage, and in spite of such service being rendered within promotion quota,

subject to eligibility and suitability.

Plea is not correct on the face of it :

We are unable to hold that the entire service of a promotee continued

beyond 6 months without consulting the Commission must be treated as non-

est and should stand wiped out altogether and that only service rendered in

accordance with rules can be retrospectively regularised. On the face of

it, there is a contradiction in the plea for if service to start with is in

accordance with Rules, it will not come under Rule 25 at all. It will be

regular to start with and there is no need for regularisation. The need

arises for regularisation only if the service of the promotees is not

according to rules to start with.

Regulation 4(d)(ii) does not refer to any penal consequences:

Regulation 4(d)(ii) of the J.K. Public Service Commission (Limitation of

Functions) Regulations, 1957-merely states that it shall not be necessary

for the commission to be consulted on the suitability of candidates for

"officiating promotions or transfer to any service or post when at the time

of making the promotion or transfer there is reason to suppose that the

officiating promotion or transfer will be for not more than six months"

This Regulation therefore fixes the period of service of such officiating

promotee or transferee which need not go before the Commis-sion. It does

not however say that if the Commission is not consulted before six months,

or where the Commission when consulted within six months does not pass an

order of extension before the period of six months, the said service is to

be treated as non-est. Further, in our view, as already stated, such

service can be regularised under Rule 23 of the J.K. (CCA) Rules, 1956, by

commencing the probation retrospectively and by appointment to the service

from a date when a substantive vacancy was available within the quota. It

is only in respect of the period of service rendered outside the quota that

retrospective regular promotion/recruitment by transfer cannot be made in

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respect of that pail of the service. That would mean that only such service

which is rendered by the promotee/ transferee-recruitee within his quota,

can be regularised. Similarly if he is found not eligible, nor fit, nor

suitable - though posted in a post within quota-that service cannot be

counted. It is not the employees' fault if the State does not take steps to

refer the question of continuance beyond six months to the P.S.C. for

years. It is one thing to say that the ad hoc service of a promotee does

not count for seniority till regularised after consulting the Service

Commission and another thing to say that it cannot, under any circumstances

be regularised. In as much as the consequence of non-consultation with the

Commission is not stated in the Regulation 4(d)(ii) of the P.S.C.

Regulations 1957, and no penal consequences are mentioned, such service

within quota subject to eligibility and suitability cannot be ignored when

power is exercised under Rule 23.

Overvhelming authority of this Court to say that ad hoc/stop gap service of

promotees can be regularised :

This principle is supported by ample authority. Procedural inaction towards

promotees, it has been held, can be "rectified". This is explained in the

three Judge Bench case in State of West Bengal v. Aghore Nath Dey, [1993] 3

SCC 371. In that judgment propositions A and B laid down in Direct Recruit

Case [1990] 2 SCC 715 were explained by Verma, J. (as he then was). It was

pointed out that proposition A where it was held that the ad hoc service

would not count was one where the same was stop gap (i.e. and remained as

such). In proposition B it was said that ad hoc service could count in

certain situations such as where there was only a 'procedural' irregularity

in making appointments according to Rules. In such a situation, the

irregularity can be subsequently 'rectified'. In such a case such ad hod

stop-gap or temporary service cold be counted. Again in Syed Khalid Rizvi's

case, it was held by Ramaswamy, J. speaking for the three Judge Bench that

proposition A and B in Direct Recruit case had to be read with para 13

therein. Similarly, in I.K. Sukhija v. Union of India, [1997] 6 SCC 406,

Nanavati, J. explained propositions A and B by reference to Aghore Nath

Dey's case [1993] 3 SCC 371, referred to above.

The Andhra Pradesh cases are based on similar rule: such service can be

regularised with retrospective effect :

Apart from the general principle of law as stated above, there are ruling

of this Court on almost identical rules which go against the contention

raised by the direct recruits. Rules identical to Rules 15 and 23 of the

J.& K. (CCA) Rules, 1956 have come up for consideration in this Court in

cases arising from Andhra Pradesh. These decisions are obviously binding on

us. A case directly in point is the one in Desoola Rama Rao v. State of

A.P., [1988] Suppl. SCC 221. The relevant rule in that case [Rule 23(a)] is

similar to Rule 15 and Rule 23 of the J&K (CCA) Rules of 1956. Rule 23(a)

of the AP State and Subordinate Services Rules read as followings:

"Rule 23(a) If a person having been appointed temporarily under sub-rule

(a) or sub-rule (c) of Rule 10 to a post borne on the cadre of any service,

class or category or having been appointed to any service, class or

category otherwise than in accordance with the rules governing appointment

thereto is subsequently appointed to any service, class or category in

accordance with the rules, he shall commence his probation from the date of

such subsequent appoint-ment or from such earlier date as the appointing

authority may determine."

We shall examine the facts closely. The respondents 3 and 4 there were

temporarily promoted as Assistant Engineer on 14.10.1959 and 19.5.60

respectively. The appellant was directly recruited on 18.7.66 as Assistant

Engineer. Under rule 23(a) the services of the respondents 3 and 4 were

retrospectively regularised by commencing probation from 19.5.61 in both

cases by order of the Chief Engineer dated 3.7.67. This Court held that the

respondent-promotee officers would be senior to the appellant even though

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the appellant was appointed substantive as a direct recruit on 18.7.66 and

the respondents were on that date working only in a temporary capacity from

14.8.59 and 19.5.60 but once their services were regularised by order

dated 3.7.67 (passed no doubt after 18.7.66) it could take effect from

anterior dates. It will be noticed that even in the above case, the

regularisation was not of the entire temporary service of the promotees

from 14.8.59 and

19.5.60 but only from 19.5.61 in both cases. In other words when the

posting Assistant Engineers were filled, based on their qualifying service

and availability of vacancies in their quota, part of the temporary service

before

19.5.61 was lost and was not counted.

Again, in respect of the same Rule 23(a) of the Andhra Pradesh Rules, this

Court observed in State of A.P. v.K.S. Muralidhar, [1992] 2 SCC 241 that

there can be no objection under the said rule for retrospective regu-

larisation.

Similar is the position in M. Janardhan v. State of A.P., [1994] Suppl. 3

SCC 298. There adverting to Rule 37(e) of the A.R Rules which also

permitted regular promotion from an 'anterior date', (like Rule 23 here) it

was held that the said retrospective promotions were rightly upheld by the

Tribunal.

Cases from other States Support pmmotee's regularisation with retwspective

effect :

Apart from cases arising from Andhra Pradesh the position appears to be the

same as per the cases arising from other States, so far as promotee's ad

hoc service is concerned. In BaleshwarDas v. State of U.P., [1981] 1 SCR

449, it was observed (at p.464) that officiating promotees are to be given

dates by the Service Commission for counting seniority. In B.S. Yadav v.

State of Haryana, [1981] 1 SCR 1024, it was said that the promotees have to

be confirmed in their quota if found fit and qualified and when vacancies

arose in their quotas. In A. Janardhana v. Union of India, [1983] 2 SCR 636

(at p.961) it was observed that the seniority of the promotees was to count

from the date of occurrence of vacancy in their quota. In G.P. Doval v.

Chief Secretary, Government of U.P., [1984] 4 SCC 329, it was held that

subsequent appointment by the Public Service Commission to the temporary

appoint-ments will relate back to the initial dates or appointment for

purpose of seniority on basis of rule of continuous officiation and the

seniority could not be reckoned only from the date of approval or selection

by the Commission. In Narender Chadda v. Union of India, [1985] 2 SCC 157,

it was held that promotees were first to be regularised from dates of

occurrence of vacancies/ eligibility. The initial appointment though not

according to rules, the said service could not be ignored. In A.N. Pathak

v. Secretary to the Government, [1987] Suppl. SCC 763, it was held that the

promotees had to be inserted at places reserved for them as per quota. In

Delhi Water Supply & Sewage Disposal Committee v. R.K. Kashyap, [1989]

Suppl. 1 SCC 194, it was held that once regularisation was made by the

PSC/DPC, the said service could not be ignored.

As to when post of ad hoc/stop gap service of promotees cannot be

regularised: if outside quota or not eligible or suitable :

In some cases, a distinction is made between two parts of the ad hoc/ stop

gap service or promotees, one which can be regularised and the other which

cannot be regularised. In Keshav Chandra Joshi v. Union of India, [1992]

Suppl. 1 SCC 272, it was held that previous promotee would get

regularisation from date of occurrence of vacancy in promotion quota.

Before that, it would be fortuitous. Of course, excess promotees could not

claim seniority if the quota rule had not broken down because they occupy

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the seats of direct recruits. In Rajbir Singh v. Union of India, AIR (1991)

SC 518, the ad hoc promotion was in 1975,and the subsequent regularisation

was in 1986 and it was held that the period ad hoc service could be

counted. In A.N. Sehgal v. Raje Ram Sheoran, [1992] Suppl. 1 SCC 304, it

was held that the promotees whose services were regularised could count

their earlier service from the date of availability of a post within their

quota but the earlier period between the starting point of ad hoc promotion

and the date of occurrence of the vacancy could not be counted. In S.L

Chopra v. State of Haryana, [1992] Suppl. (1) SCC 391, it was held that

promotees service would count from date of availability of post within

quota and service before that dates would be fortuitous. In Syed Khalid

Rizvi v. Union of India, [1993] Suppl. 3 SCC 575, it was held that the

service of promotee would count from date of allotment to select list but

the period prior thereto would not count. In Keshav Dev v. State of U.P.,

[1999] 1 SCC 280, Srinivasan J. held, on a review of case law that

seniority of promotees would count from the dates fixed within the quota by

DPC. (In this case, a good number of judgments which were relied upon

before us by direct recruits were distinguished).

Thus, there is overwhelming authority of this Court to hold that ad hoc,

stop gap service could be regularised from an anterior date after

consulting the Service Commission from the date of vacancy in promotee

quota, after considering fitness, eligibility, suitability and ACRs.

Therefore, the ad /hoc/stop gap service rendered by promotees beyond six

months and without the consent of the Public Service Commission as per

Regulation 4(d)(ii) cannot be treated as non-est. It can be regularised

later after consulting the Commission in respect of posts in the promotion

quota and subject to eligibility and suitability based on ACRs. etc. Only

the period rendered outside quota or the period rendered within quota when

the promotee was not eligible or found fit has to be excluded.

Unfortunately, the High Court as well as the direct recruits have applied

wrong rulings to the case of promotees and ignored the overwhelm-ing

authority, referred to above, in favour of promotees. We shall now refer to

these aspects in detail.

Cases relied upon by direct recruits - not applicable :

The direct recruits have strongly relied upon the decision in V. Sreenivasa

Reddy v. Govt. of A.P., [1995] Suppl. 1 SCC 572. But this decision cannot

be of any help to them. In that case Rule 10 and Rule 23 of the Andhra

Pradesh State and Subordinate service Rules were referred to. It was

pointed that the promotee's temporary service under Rule 10 (i.e. service

rendered, in a post to which the officer was not appointed according to

Rules), could not be counted on facts, because there was no order of

retrospective regularisation. In fact, this Court accepted that if

regularised under Rule 23 of the A.P. Rules, the temporary appointees could

have been regularised from an anterior date. (This Court then referred to

certain rulings which said that direct recruits could not count ad hoc

service rendered by them before their regular selection). On facts, this

Court held that the Government had relaxed the rule regarding P.S.C.

consultation but had placed the promotees below the direct recruits and

this need not be interfered with. This case far from supporting the direct

recruits, supports the promotees.

Similarly, K. Siva Ready v. State of A.P., [1988] 3 SCR 18 = [1988] Suppl.

SCC 225 cannot also be of any help. It was there held that the

retrospective regularisation cannot be resorted to under Rule 23(a) of the

Andhra Pradesh Rules if the Service is rendered by the promotee is in a

post within direct recruit quota. The promotees were to be confined to

their quota. This case is distinguishable.

Again, Ramedhra Singh v. Jagdish Prasad, [1984] Suppl. SCC 142 is

distinguishable in as much as it was there held that under executive power,

retrospective regularisation cannot be made. There it can be made after

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consulting the Commission is well settled by various decisions. This ruling

too does not advance the case of the direct recruits.

Principle that only service "according to Rules" can be regularised applies

to direct recruits and not to promotees:

Next, the direct recruits and the High Court have relied upon several

rulings which say that direct recruits cannot seek benefit of ad hoc

service rendered before their regular appointments.

These rulings cannot be applied to the case of promotees. In fact the

principle laid down in these cases is consistent with principles in service

jurisprudence so far as the ad hoc service rendered by direct recruits

before the date of their regular selection is concerned. Their service

counts only from date of regular appointment according to rules and any ad

hoc /stop gap service rendered before regular selection cannot count for

seniority.

The direct recruits relied upon A.P.M. Mayan Kutty v. Secretary, [1977] 2

SCC 360. In that case, the petitioner was appointed in the 1950 temporarily

under Rule 10(a)(i) of the Rules (which is similar to the ad hoc

appointment under Rule 14 and Rule 25 in J. & K. Rules and rule 10(a)(i) of

the AP Rules) but was directly recruited only in 1954. It was held that the

pre 1954 service could not be counted. Likewise in State of T.N. v. E.

Paripoomam, [1992] Suppl. 1 SCC 420, the petitioner in the High Court was

appointed temporarily under Rule 10(a)(i) but was recruited much later

under the rules through PSC. The PSC gave him a rank. It was held that his

seniority would be as per the rank and not from date of temporary

appointment. A.P.M. Mayan Kutty's case was followed. P.D. Aggarwal v. State

of U.P., [1987] 3 SCC 622 was one where it was held (see para 26-28) that

the ad hoc service of the officer who was later directly recruited in

consultation with the PSC, could not count as it was not regularised

service. Their seniority would count only from the date they become members

of the services, even if they were qualified earlier on date of temporary

appointment (see p.646). Masood Akhtar Kan v. State of M.P., [1990] 4 SCC

24 is also a case of the direct recruit and it was held that his previous

service before regular selection by PSC could not count. Vijay Kumar Jain

v. State of M.P., [1992] Supp. 2 SCC 95 is similar. In Stale of Orissa v.

Sukanti Mohapatra, [1993] 2 SCC 486, the exercise of power of relaxation by

the Government to count the ad hoc service of direct recruit prior to PSC

recruitment was held bad and the order, to that extent, was quashed. Dr.

Arundhati Ajit Pargaonkar v. State of Maharashtra, [1994] Suppl. 3 SCC 380

is also a case where ad hoc service of employee before direct recruitment

by PSC was held not liable to be counted. In E. Ramakrishnan v. State of

Kerala, [1996] 10 SCC 565 the pre-recruitment service of 13 years was held

not to be counted. All these cases cited relate to ad hoc service of direct

recruits before selection and are therefore distinguishable and could not

have been relied upon to deprive the promotees of their ad hoc service.

Promotees cannot seek regularisation of ad hoc service in certain

situations:

We shall next refer to another set of cases relied upon by the direct

recruits where, on facts, the promotees were not given benefit of ad

hoc/slop gap service. Here the service rendered by the promotee was either

outside quota or the candidates were not eligible by the date the order of

regulari-sation was passed or were not having the required experience. In

C.K. Antony v. B. Muraleedharan, [1998] 6 SCC 630, arising from the Kerala

State has some special features. There was a rule similar to Rule 23 of the

J & K Rules and Rule 23(a) of the Andhra Pradesh Rules. The said rule

permitted retrospective regularisation of the promotees from anterior dates

but this rule stated that the said regularisation should be "without

prejudice to seniority". It was no doubt interpreted that the rule meant

that the seniority of direct recruits could not be affected. The question

as to when it could be said that the seniority of a direct recruit would be

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prejudiced, was not elaborated. Whether the case of direct recruits would

be prejudiced even if the promotees were given seniority from an anterior

date upon a post within their quota, was not decided. Further, on facts,

the earlier ad hoc promotion of the promotees was not against cadre posts

but was on the excess quota. Obviously, it could not count for seniority in

view of Direct Recruit's case. Any regularsation of such service in a

direct recruitment post would definitely prejudice the seniority of direct

recruits. In view of the above peculiar features, the case is clearly

distinguishable. Similarly, the decision in D.N. Agarwal v. State of MP,

[1990] 2 SCC 553, cannot help. There it was held that the benefit of

retrospective regularisation for promotees could not be granted but this

was because the promotees lacked the requisite years of experience and were

not eligible. B.N. Nagarajan v. State of Karnataka, [1979] 3 SCR 937 the

promotees service from l.11.1956 was regularised and it was held that the

order of regularisation by government w.e.f. 1.11.1956 by an executive

order was not tenable because the probation Rules came in 1958 and in fact,

the promotions were partly within quota of direct recruits. The case in

State of Bihar v. Akhouri Sachindra Nath, AIR (1991) SC 1244, is again

distinguishable because there the promotees were not even officiating in

the post on 22.2.61 and were not even bom in the cadre. These cases are all

distinguishable.

Unfortunately these rulings have been wrongly relied upon by the direct

recruits or by the High Court, to hold that promotees are not entitled to

benefit of the ad hoc/stop gap service.

Summary :

Summarising the position, we therefore hold that the ad hoc/slop gap

service of the promotees cannot be treated as non-est merely because P.S.C.

was not consulted in respect of continuance of the ad hoc/stop gap service

beyond six months. Such service is capable of being regularised under Rule

23 of the J&K (CCA) Rules, 1956 and rectified with retrospective effect

from the date of occurrence of a clear vacancy in the promotion quota,

subject to eligibility, fitness and other relevant factors. There is no

'rota' rule applicable. The 'quota' rule has not broken down. Excess

promotees occupying direct recruitment posts have to be pushed down and

adjusted in later vacancies within their quota, after due regularisation.

Such service outside promotee quota cannot count for seniority. Service of

promotees which is regularised with retrospective effect from date of

vacancies within quota counts for seniority. However, any part of such ad

hoc/stop gap or even regular service rendered while occupying the direct

recruitment quota cannot be counted. Seniority of promotees or transferees

is to be fixed as per quota and from date of commencement of

probation/regular appointment as stated above. Seniority of direct recruit

is from the date of substantive appointment. Seniority has to be worked out

between direct recruits or promotees for each year. We decide point 3

accordingly.

Point 4 :

direct recruits cannot claim appointment from date of vacancy in quota

before their selection :

We have next to refer to one other contention raised by the respond-ents-

direct recruits. They claimed that the direct recruitment appointment can

be antedated from the date of occurrence of a vacancy in the direct

recruitment quota, even if on that date the said person was not directly

recruited. It was submitted that if the promotees occupied the quota

belonging to direct recruits they had to be pushed down, whenever direct

recruitment was made. Once they were so pushed down, even if the direct

recruit came later, he should be put in the direct recruit slot from the

date on which such a slot was available under direct recruitment quota.

This contention, in our view, cannot be accepted. The reason as to why this

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argument is wrong is that in Service Jurisprudence, a direct recruit can

claim seniority only from the date of his regular appointment. He cannot

claim seniority from a date when he was not born in the service. This

principle is well settled. In N.K. Chauhan v. State of Gujarat, [1977] 1

SCC 308 (at p.321) Krishna Iyer, J. stated :

"later direct recruit cannot claim deemed dates of appointment for

seniority with effect from the time when direct recruitment vacancy arose.

Seniority will depend upon length of service."

Again, in A. Janardhana v. Union of India, [1983] 2 SCR 936, it was held

that a later direct recruit cannot claim seniority from a date before his

birth in the service or when he was in school or college. Similarly it was

pointed out in A.N. Pathak v. Secretary to the Government, [1987] Suppl.

SCC 763 (at p.767) that slots cannot be kept reserved for the direct

recruits lor retrospective appointments.

What we have stated in points 1 to 4 in respect of ad hoc Assistant

Engineers applies to ad hoc Assistant Executive Engineers, to the extent of

the principles laid down, are applicable. We say this in view of point 2

that was framed by the High Court covering both the cadres. We hold on

Points 1 to 4 as stated above.

Point 5:

The relief :

In view of our decision on Points 1 to 4, the appeals will be governed by

our findings on points 1 to 4. We further direct as follows. The Public

Service Commission and the Government will complete the exercise of regular

appointment of the promotees - Assistant Engineers and Assistant Executive

Engineers within four months from today. Till such time the stay of

promotions granted by this Court will operate. After passing orders under

Rules 15 or 23, as the case may be, and in conformity with quota and year-

wise adjustment of quota, a fresh provisional seniority list will be

prepared in the category of Assistant Engineers. Objections will be invited

and the final seniority lists will be issued within two months of last date

fixed for filing objections. The stay of promotions granted by us will

stand vacated once the provisional seniority list of Assistant Engineers is

prepared. Promotions can be made, subject to review. After receiving

objections, the provisional list shall be finalised as stated above and a-

final seniority list will be issued. Pending issue of final seniority list

of Assistant Engineers there will be no reversions of Assistant Engineers

already promoted as of today. Once the list is finalised, there will be a

review of all promotions to the category of Assistant Engineers in respect

of all promotions made to that category. Thereafter, a provisional

seniority list will be issued in the category of Assistant Executive

Engineers within one month of the final list of the Assistant Engineers and

objections will be called for. The stay granted by us of further promotions

of Assistant Executive Engineers shall then stand vacated. There will be no

reversions of Assistant Executive Engineers already promoted till final

seniority list of Assistant Executive Engineers is published. Their final

list will be published within two months after the last date for filing

objection to the provisional list. certain general directions to the State

of J&K for the future :

Apart from the above specific directions, we think this is an occasion to

issue certain general directions to the State of Jammu & Kashmir. As

pointed out earlier, the State of Jammu and Kashmir has been flouting basic

rules of recruitment by granting relaxation of the rules of direct

recruitment as also the rules requiring consultation with PSC/DPC for

promotions/ recruitment by transfer. In order to ensure that this is not

done in future, the following directions shall also issue.

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(A) The State of Jammu and Kashmir shall appoint a high level Committee

within a month from today to go into the question as to whether in any

department in Government service, direct recruitment of existing vacancies

has not been made and if there was unreasonable delay, the State will

consider making direct recruitment expeditiously depending on the needs in

the service and other relevant factors. But it will ensure that no

promotees are put in the direct recruitment quota, temporarily or on stop

gap or ad hoc basis unless simultaneously proceedings are initiated for

direct recruitment through the Service Commission. The Committee will

recommend in what manner the direct recruitment could keep pace with

promotions as contem-plated by rules.

(B) Similar, the Committee will find out in which department the ad

hoc/stop-gap promotees are languishing without their cases being referred

to the Service Commission/DPC for regularisation within their quota.

(C) The State of Jammu and Kashmir Will ensure that no relaxation of basic

recruitment rules is made for direct recruitment through P.S.C., or for

purposes of regular promotions/recruitment by transfer. The recommen-

dations of the Committee referred to above may be considered by Govern-ment

and implemented in accordance with the rule and in accordance with law

without unreasonable delay.

The appeals are disposed of as stated above. There will be no order as to

costs.