2000 Supreme(SC) 903

2000(3) Supreme 637
Supreme Court of India
(From Jammu & Kashmir High Court)
M. Jagannadha Rao & A.P. Misra, JJ.
Suraj Parkash Gupta & Ors. etc. etc. —Appellants
versus
State of Jammu & Kashmir & Ors. —Respondents
Civil Appeal No. 3034 of 2000
(Arising out of SLP (Civil) No. 4744 of 1999)
With
Civil Appeal Nos.3035 to 3047 of 2000
(Arising out of SLP (C) Nos. 5600-5601, 5010, 5602, 5144, 5329-5330 & 5345-5350 of 1999)
Decided on 28-4-2000
Counsel for the Parties :
For the Appearing Parties : M.H. Baigh, Raju Ramachandran, Sr. Advo­cates, G.K. Banerjee, Ms. Hina, Ms. Nandini Gore, Dhruv Mehta, Ms. Shobha, S.K. Mehta, (M.A. Gani) Advocate General for J & K, A.M. Magray, Ashok Mathur, N. Safaya, Santosh Gupta, Sarwa Mitter, Ms. Beena Madhavan, P.H. Parekh, G.M. Kawaoosa, N. Ganapathy, Ms. Rani Chhabra, Ms. Richa Goyal, Sibo Sankar Mishra, P.N. Puri, Advocates.

Important Points
1. 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.
2. 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.

Headnote:(i) Service Law—Promotion and Seniority—Promotees vs. Direct ­recruits—Gazetted Post of Assistant Engineers and Assistant Executive ­Engineers—Recruitment Rules providing 20 direct recruitment and 80 promotion—Government granting ad hoc promotion without following quota rule—Ad hoc promotees ­allowed to continue beyond six months—Subse­quent appointment of direct recruits—Government regu­larising promo­tion of all ad hoc/temporary promotees—Held: Whole sale regularisation by way of implied ­relaxation of recruitment rule to gazetted category invalid—Eligibility and suitability of ad hoc promotees not consid­ered—Regularisation done without consulting Public Service Commission was bad—J.&K. Public Service Commission Regulation, 1957—Regulation 4(d)(ii).

       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. The wholesale regu­larisation 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. (Paras 28 & 31)

       On facts, the reasons given in the Cabinet note for granting relaxation are hopelessly insufficient. In fact, the letter of the Commission dated 25.11.1997, 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 suitability 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’s 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 Jaswal’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 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. (Para 32)

       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 deliberately 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. 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. (Para 33)

       (ii) Service Law—Promotion and seniority—Ad hoc promotion exceeding quota—Delay in recruiting direct recruits—Belated appointment of direct recruits far below quota—Regularisation of ad hoc promotion placing direct recruits below promotees in seniority list—Plea that quota rule brokedown—Unsustain­able—There must be evidence that suitable candidates were not available for direct recruitment—Except lethargy of Government and its inaction asking Service Commission to make direct recruitment no other cause visible—There was no break­down of quota rule so as to justify Government s ­action.

       Held : 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 noticed that when a very belated decision was taken to make direct recruitment, 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. (Para 36)

       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 inferred 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. 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. (Paras 37 & 39)

       (iii) J.&K. Public Service Commission Regulations, 1957—Regulation 4(d)(ii)—Ad hoc/stopgap promotion—Continuance of service beyond six months till regularisation without consulting Service Commission—Not permissible—Government not justified in regularising entire ad hoc service without consulting Service Commission. (Para 45)

       (iv) J.&K. Civil Service (Classification Control and Appeal) Rules, 1956—Rules 14(1) and 23—Recruitment Rules 1978—Rule 5(2) read with Rule 11(1)—Ad hoc/stop-gap service—Regularisation of—Determination of seniority inter se ad hoc promotees and direct recruits—Service regulations providing for 80 promotion to post of Assistant Engineer and 20 by direct recruitment—Government giving promotions on ad hoc basis beyond quota—Belated appointment of direct recruits—Regu­lari­sation of service of ad hoc pro­motees without consulting Service Commission—Direct recruits contention that ad hoc promotees services could not be regularised from date —Plea that promotees could not be placed above direct recruits in seniority list and ad hoc service period should be treated as non-est—Held, ad hoc service is capable of being regularised under Rule 23 of J. & K. (CCA) Rules rectified from date of ­occurrence of clear vacancy in promotion quota subject to eligibility fitness—Ad hoc/stop-gap service of promotees cannot be treated as non-est merely because Service Commission was not consult­ed for continuance of service—Service of ad hoc promotee’s regula­rised with retrospective from date of vacancy within quota counts for seniority—Ad hoc/stop-gap or even regular service rendered while occupying direct recruitment quota cannot be counted in fixing senior­ity—Seniority of direct recruit is from date of substantive appointment—Direct recruits cannot claim appointment from date of vacancy in quota before their selection.

       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. 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”. (Paras 51 & 52)

       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. (Para 53)

       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 promoted or 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 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. (Paras 56 & 57)

       The plea 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 rules’ and cannot be regularised, i.e. even by consulting the Service Commission at a later state, and in spite of such service being rendered within promotion quota, subject to eligibility and suitability cannot be accepted. 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. (Paras 58 & 59)

       Regulation 4(d)(ii) of the J.K. Public Service Commission (Limitation of Functions) Regulations, 1957 fixes the period of service of such offici­ating promotee or transferee which need not go before the Commission. 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 respect of that part 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. (Para 61)

       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. (Para 68)

       Summarising the position, we therefore hold that the ad hoc/stop 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/or 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/or 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. (Para 78)

       The argument that the direct recruitment ap­pointment can be ante-dated 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 and if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made and 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 is wrong because 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. (Paras 79 & 80)

       (v) Service Law—Recruitment—Promotion and direct selection—J.&K. Govern­ment has been flouting basic rules of recruitment by granting relaxa­tion of rules of direct recruitments as also rules requiring consulta­tion with Service Commission and Departmental Promotion Committee for promotions/recruitment by transfer—Directions given to appoint high level committee to go into question—Unreasonable delay in making direct recruitments—J. & K. Government directed to ensure consultation with PSC and DPC. (Para 83)