IMPORTANT POINTS
1. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop-gap basis then such an appointment cannot be held to be on substantive basis. The expression "substantive basis" is used in the Service Jurisprudence in contra-distinction with ad hoc or purely stop-gap or fortuitous.
2. The expression "service rules" does not necessarily mean Rules framed by the Governor in exercise of power under the proviso to Article 309 of the Constitution. It is well settled that the service condition including the mode of recruitment to a service could be determined by a set of Administrative Order in the absence of any statutory rule operative in the field.

Headnote:Service Law-Seniority-Inter se seniority between direct recruits and absorbed appointees-Sales Tax Department of Rajasthan-Sales Tax Officers-Appellants, direct recruits and private respondents absorbed from Land and Building Tax Department in terms of Absorption of Surplus Personnel Rules 1969-Post held by Absorbent in parent department equal to post held by direct recruits-Post held by them substantive posts-Absorbent entitled to count their period of service in parent department in determining inter se seniority on between absorbents and direct recruits in Sales Tax Department in terms of Rule 15(1) of Absorption Rules.
       The private respondents having been absorbed as Commercial Tax Officer Grade II, their seniority in the cadre of Commercial Tax Officer Grade II will have to be determined on the basis of the aforesaid Rule 15(1). It is also not disputed that the post which these private respondents were holding under the Land and Building Tax Department were equivalent posts of the posts of Commercial Tax Inspector Grade II. The only question, therefore, requires adjudication is whether these private respondents were in continuous substantive service with effect from 1.3.1974 or they would be held in continuous substantive service only after they were made permanent with effect from 27.2.1981. In the Service Jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop-gap basis then such an appointment cannot be held to be on substantive basis. The expression "substantive basis" is used in the Service Jurisprudence in contra-distinction with ad hoc or purely stop-gap or fortuitous. It is also quite apparent in Service Jurisprudence that there exists difference between a substantive post as contra-distinguished from temporary post and appointment of an incumbent to these posts could be made either on substantive basis or on ad hoc or stop-gap basis. This being the legal position and in the case in hand the initial appointment to the post in the Land and Building Tax Department of the private respondents having been made after subjecting the incumbent to prescribed test and on being selected after initially making their appointments on probation and thereafter excluding the expression "probation" from the terms of appointment and continuing them against the temporarily created post till the posts were made permanent and then the incumbent were also made permanent, it cannot but be held that these private respondents had continuously held a post in the Land and Building Tax Department on substantive basis which post is equivalent to the post of Commercial Tax Inspectors Grade II in which these private respondents were absorbed, and consequently, for the purpose of determining the seniority of the appellants who were direct recruits to the post of Commercial Tax Inspector Grade II and the respondents who had held an equivalent post in the Land and Building Tax Department on substantive basis with effect from 1.3.1974 the continuous substantive service from that date will have to be reckoned. (Para 4)
       The argument that since there was no relevant Service Rules for recruitment to the post under the Land and Building Tax Department it has to be assumed that such appointment has been made without any selection and, as such the appointment would attract the expression "ad hoc" in Rule 3(a) of the Absorption Rules cannot be accepted inasmuch as the expression "service rules" does not necessarily mean Rules framed by the Governor in exercise of power under the proviso to Article 309 of the Constitution. It is well settled that the service condition including the mode of recruitment to a service could be determined by a set of Administrative Order in the absence of any statutory rule operative in the field. This being the position, and when the very advertisement for filling up of the post in the Land and Building Tax Department is examined it would be apparent that the said advertisement indicated minimum educational qualification, the age of the applicant, the number of vacancies and the mode of recruitment. It was further stipulated that the selection of the candidates will be by the written test in General Knowledge, General English, General Hindi and thereafter the interview. In the aforesaid clear enunciation of the mode of recruitment to the post by the competent Executive Authority, the contention that the appointments of the private respondents had been made without any selection cannot be accepted. The argument that the second part of the definition in Rule 3(a) would also be applicable to the case in hand inasmuch as though the temporary appointment of the private respondents to the Land and Building Tax Department had been made by the order of the Government for which there was no service rules and as such, the appointment cannot be ad hoc. Also cannot be accepted on a true interpretation of the second part of Rule 3(a). To attract the second part the conditions to be fulfilled are (1) there does not exist any Service Rule for the appointment (2) the appointment is made under the orders of the government and (3) such appointment is made otherwise than on the recommendation of the Commission if the post comes within the purview of the Commission. It is nobody s case that the posts created under the special scheme to which the private respondents had been recruitedin the Land and Building Tax Department do come within the purview of the Service Commission. In such a case if there is no service rules appointment is made by an order of the government to the post then also it will not be an ad hoc appointment in terms of Rule 3(a) of the Absorption Rules. But as we have already stated, expression "Service Rule" cannot be given a restrictive meaning in the absence of the definition of the said term and, therefore, it would include within its sweep the necessary Government Order providing the method of recruitment. In the case in hand in view of our conclusion, the Government Order did prescribe the method of recruitment it would be difficult for us to hold that there was no Rule existing providing the mode of recruitment. Consequently even the second part of the definition of `ad hoc appointment contained in Rule 3(a) of the Absorption Rules to have no application. (Para 6)

JUDGMENT

Pattanaik, J.-These appeals are directed against the common judgment of the Division Bench of the Rajasthan High Court in a bunch of writ petitions, which had been filed against the judgment and order of the Rajasthan Civil Services Appellate Tribunal in a bunch of appeals. The perennial problem of inter se seniority between the two sources has cropped up in these appeals, but the dispute in the present batch of cases is between the direct recruits and the surplus persons who were absorbed as Sales Tax Officers in the Sales Tax Department, the absorption having been made under the Absorption of Surplus Personnel Rules, 1969 (hereinafter referred to as the Absorption Rules ). The appellants are the direct recruits to the post of Commercial Tax Inspector and the recruitment to the said post is governed by a set of rules framed under the proviso to Article 309 of the Constitution called the Rajasthan Commercial Taxes Subordinate Service (General Branch) Rules, 1975 (hereinafter referred to as the Recruitment Rules). The private respondents herein had been appointed to the Land and Building Tax Department and they being found to be surplus personnel, they were absorbed under the Co-operative Department and later on, in the Commercial Tax Department as Commercial Tax Inspectors under the provisions of the Absorption Rules. The inter se seniority between the surplus employee, who is appointed substantively to a permanent post in the service in which he is absorbed and those who are in the parent department, is required to be determined under Rule 15 of the Absorption Rules. Under the said rules, the longer period of continuous substantive service on the post compared to the post in which the absorption takes place is the criteria. The private respondents being original appointees in the Land and Building Tax Department, on their absorption in the Sales Tax Department under the Absorption Rules, for determination of their seniority under Rule 15 of the said Rules, the question for consideration would be, whether the post which they were holding in the Land and Building Tax Department are comparable to the post of Commercial Tax Inspector and if so, whether their appointment to the post in the Land and Building Tax Department from the inception, was substantive in nature or it became substantive from any later point of time and consequently what period of that service could be counted for the purpose of determining the inter se seniority in terms of Rule 15(1) of the Absorption Rules. The Land and Building Tax Department was created in the year 1973 and pursuant to an advertisement issued for appointment of Trainee Inspectors under the special scheme for providing employment to educated unemployed, the private respondents were appointed on 17th of August, 1973 on a fixed stipend of Rs. 150/- per month. W.e.f. 1.3.1974, such trainees were appointed on probation on the temporary post of Second Class Inspector, on successful completion of their training under the said Land and Building Tax Department. By order dated 4.5.1976, the State of Rajasthan substituted the expression on probation by the word temporary and as such, the private respondents were appointed on temporary basis w.e.f. 1.3.1974. The appellants 1 to 4 having been selected by the Rajasthan Public Service Commission under the Recruitment Rules of 1975, were appointed as Commercial Tax Inspectors Grade II on probation by order dated 19.12.1977. Appellants 5 to 10 had been selected by the said Rajasthan Public Service Commission under the Special Recruitment Rules of 1976 and had been appointed to the post of Commercial Tax Inspector, Grade II on 28.7.77. All the appellants were made permanent in the said post of Commercial Tax Officer, Grade II w.e.f. 1.3.80 by order dated 5.5.1982. In the Urban Land and Building Tax Department, the private respondents who had been appointed temporarily, were made permanent w.e.f. 27.2.1981 by order dated 1.9.1981, as 61 tempor

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2000 Supreme(SC) 1884

Cases Referred (2)