Important Point
A person who has been appointed to a service or post temporarily or provisionally as a stop-gap arrangement, can never be considered as one, who has been appointed to that post or service.

Headnote:Question of seniority between the direct recruits and promotees in the cadre of Assistant Conservator of Forests under Kerala Forest Service Special Rules and Kerala Service Rules - Respondent-direct recruits were appointed ACF’s on 1.5.78-Claim of promotee-Appellants that they were appointed by promotion as ACF’s long before 1.5.78-Whether correct? (No)-Appointment of appellants in excess of quota-Direct recruits seniority not affected-Appeals dismissed.
       Held : It is contended on behalf of the appellants that though the appointments of the appellants were temporary, the Government has regularised those appointments prior to the appointments of the direct recruits and, therefore, they are entitled to claim seniority over the direct recruits. We are unable to agree with this contention as any appointment/regularisation contrary to the rules, which would prejudice the rights of direct recruits, cannot be sustained. Factually, before the appointments of the direct recruits in the years 1978, 1979 and 1980 they were undergoing training as advised by the Kerala Public Service Commission. Therefore, it cannot be contended by the State that no direct recruits were available for appointment, which necessitated the recruitment by transfer. (Para 12)
       We have already noticed that the appellants were appointed on the relevant dates in excess of their quota. Therefore, any appointments in excess of the quota prescribed for the promotees cannot prejudice the rights of the direct recruits. The common judgment under appeal is quite in accord with the law settled by this Court and the same does not call for any interference. (Para 14)
       In the result, the appeals fail and are dismissed accordingly with no order as to costs. (Para 15)

Judgment

Venkataswami, J.-In all these appeals, the vexed and unending question of seniority between the direct recruits and promotees arises for our consideration.

2. In these appeals, the question relates to a dispute that has arisen in the cadre of Assistant Conservator of Forests, whose services are governed under the Kerala Forest Service.

3. It is common ground that recruitment to the cadre of Assistant Conservator of Forests (hereinafter called the “ACF”) is directly as well as by transfer. The proportion between the direct recruits and recruitment by transfer is also fixed as 3:2 in the Kerala Forest Service Special Rules. The seniority of a directly recruited ACF has to be determined by the date of his appointment as probationary Assistant Conservator. It is the claim of the promotees-appellants that they were appointed by promotion as Assistant Conservator of Forests long before 1.5.78, on which date the first respondent in Civil Appeal No. 11527/95 was appointed as a probationary Assistant Conservator. The other two directly recruited Assistant Conservators were appointed as probationary Conservators subsequent to 1.5.78. Therefore, the dispute centres round the claim of the appellants whether they were appointed before 1.5.78 and whether such claim is sustainable under the relevant Kerala Forest Service Special Rules and also the Kerala State and Subordinate Service Rules. We may at once point out that the first respondent in Civil Appeal No. 11527/95 was appointed in the cadre in accordance with the above-mentioned rules on 1.5.78, is not in dispute. Likewise, the fact that seniority of that respondent has to be reckoned on and from 1.5.78 is also not controverted. However, it is the case of the directly recruited Assistant Conservators in these appeals that the appointments of the appellants, if any, prior to 1.5.78 were all under Rule 9(a)(i) of the General Rules and the same cannot be taken into account for the purpose of inter se seniority. According to them, the inter se seniority can be reckoned from the date of regular appointment as Assistant Conservators in accordance with the Rules, in particular, Rule 2 read with Rule 8 of the Special Rules.

4. Before considering the appeals further, it is necessary to set out the relevant Service Rules.

5. Kerala Forest Service Special Rules.

Rule 2. Appointment-(a) Appointment to the several categories of the service shall be made as follows :-

Category Method of recruitment

(1) (2)

1. Chief Conservator By promotion from Conservators

2. Conservators By promotion from Dy. Conservators

3. Deputy Conservator By promotion from Assistant Conserva- tors

4. Asstt. Conservators By direct recruit- ment or recruit- ment by transfer from among Ran- gers in Kerala Forest Subordinate Service.

Explanation:-Direct recruitment and recruitment by transfer from among Rangers shall be in the proportion 3:2 to the category of Assistant Conservators and the ratio shall be applicable only to the extent to which qualified and suitable candidates are available in each of the two categories. In the absence of the required number of direct recruits to be appointed against the vacancies apportioned to them, such vacancies shall also be filled up by recruitment by transfer and vice versa.

Provided that substantive vacancies alone in the category of Assistant Conservators shall be filled up in accordance with the seniority of approved probationers.

Rule 8. Seniority-The seniority of a directly recruited Assistant Conservator shall be determined by the date of his appointm

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1998 Supreme(SC) 901

Important PointA person who has been appointed to a service or post temporarily or provisionally as a stop-gap arrangement, can never be considered as one, who has been appointed to that post or service.

Cases Referred (2)

Important Point
A person who has been appointed to a service or post temporarily or provisionally as a stop-gap arrangement, can never be considered as one, who has been appointed to that post or service.