2009(5) Supreme 387
SUPREME COURT OF INDIA
(From Rajasthan High Court)
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
State of Rajasthan and Ors. — Appellants
versus
Jagdish Narain Chaturvedi — Respondent
Civil Appeal No. 3620 of 2009
(Arising out of SLP (C ) No. 2848 of 2006)
with
Civil Appeal No. 3621/2009 @ SLP (C) No.23661/2003, Civil Appeal No. 3622/2009 @ SLP (C) No.24062/2003, Civil Appeal Nos. 3624-25/2009 @ SLP (C) No.24124-24125/2003, Civil Appeal No. 3626/2009 @ SLP (C) No.24750/2003, Civil Appeal No. 3627/2009 @ SLP (C) No.214/2004, Civil Appeal No. 3628/2009 @ SLP (C) No.11767/2004, Civil Appeal No. 3629/2009 @ SLP (C) No.13421/2004, Civil Appeal No. 3630/2009 @ SLP (C) No.5617/2005, Civil Appeal No. 3631/2009 @ SLP (C) No.5654/2005, Civil Appeal No. 3632/2009 @ SLP (C) No.5723/2005, Civil Appeal No. 3633/2009 @ SLP (C) No.5730/2005, Civil Appeal No. 3635/2009 @ SLP (C) No.5738/2005, Civil Appeal No. 3636/2009 @ SLP (C) No.5739/2005, Civil Appeal No. 3637/2009 @ SLP (C) No.5740/2005, Civil Appeal No. 3638/2009 @ SLP (C) No.5745/2005, Civil Appeal No. 3639/2009 @ SLP (C) No.5746/2005, Civil Appeal No. 3640/2009 @ SLP (C) No.5749/2005, Civil Appeal No. 3641/2009 @ SLP (C) No.5750/2005, Civil Appeal No. 3642/2009 @ SLP (C) No.5752/2005, Civil Appeal No. 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Decided on : 08-05-2009
(2002) 10 SCC 674; (2003) 11 SCC 732.
(b) Service Law – Promotion – The starting point is when the employee is born on the cadre – Appointment to a post is not relevant – Question of promotion arises only when appointment is a regular appointment. (Para 11)
(2003) 3 SCC 485; (2003) 10 SCC 513; (2003) 4 SCC 625; (1997) 1 SCC 621 – Relied upon.
(2000) 8 SCC 4 – Impliedly relied upon.
(c) Constitution of India – Article 14 – There is no question of negative equality – Wrong decisions do not create a right. (Para 13)
(1997) 6 SCC 766; (1996) 2 SCC 459; (1995) 1 SCC 745 – Relied upon.
(d) Service Law – Daily wagers not members of any cadre – Hence there is no question of any scale of pay – Conditions for becoming member of service. (Paras 16 and 17)
(1988) 2 SCC 214 – Relied upon.
(e) Service Law – Ad hoc appointment is always to a post – Not having been made in accordance with the rules and procedures, such appointments are not to a cadre. (Para 18)
(f) Constitution of India – Article 141 – A decision which is per incuriam is not ‘law’ – Hence it does not have a binding effect. (Para 22)
1985 Supp 2 SCR 537; (1995) 4 SCC 683; (1997) 7 SCC 30; (1991) 4 SCC 139; (1990) 3 SCC 682 – Relied upon.
(g) Service Law – Selection grade given after regularization of appellant – Appellant entitled to all benefits. (Para 25)
Facts of the case :
1. The basic issue in these appeals is whether ad hoc appointment or appointments on daily wage or work charge basis are appointments made to the cadre/service in accordance with the provisions contained in the recruitment rules contemplated by the Government Orders dated 25.1.1992 dated 17.2.1998.
Finding of the Court :
High Court failed to appreciate that the Recruitment Rules made a distinction between appointments made to the cadre/service in accordance with the relevant Recruitment Rules which are regular and appointments made de hors the regular Recruitment Rules which are ad hoc.
Result : Appeals allowed.
JUDGMENT
Dr. Arijit Pasayat, J.—
1. Leave granted.
2. In these cases the State of Rajasthan had questioned correctness of the judgment rendered by different benches of the Rajasthan High Court allowing the Writ Petitions filed by the respondent in each case. The basic issue was whether ad hoc appointment or appointments on daily wage or work charge basis are appointments made to the cadre/service in accordance with the provisions contained in the recruitment rules contemplated by the Government Orders dated 25.1.1992 dated 17.2.1998. It is the stand of the appellants that they are not, while the respondents contend to the contrary. The cases at hand relate to the appointments made under the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (in short the ‘Ministerial Staff Rules’), the Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967 (in short the ‘Irrigation Branch Rules’), the Work Charged Employees Services Rules, 1964 (in short Work Charged Rules), the Rajasthan Agricultural Subordinate Service Rules, 1978 (in short the ‘Subordinate Rules’), the Rajasthan Forest Subordinate Service Rules, 1963 (in short the ‘Forest Subordinate Rules’), Rajasthan Panchayat Samiti and Zila Parishad Service Rules, 1959 (in short the ‘Panchayat Service Rules’) and the Rajasthan Secretariat Ministerial Service Rules, 1970 (in short the ‘Ministerial Service Rules’).
3. Stand of the appellants essentially is that the stagnation benefits are given from the date of regularization. It is submitted that this question has been decided in State of Haryana v. Haryana Veterinary & AHTS Association and Anr.1 (2000 (8) SCC 4). It is the stand of the State that the stagnation benefits are given since chance of promotion is not there. There is no question of any regularization if the proficiency test is not passed. Circulars relied upon by the employees refer to regular service.
4. In the Notification dated 29.3.1995 paras 3, 4 and 5 are of relevance. Para 3 refers to regular service while para 4 states about 10% of benefit to 10% to all the eligible employees and para 5 is the most crucial as it relates to the benefit being given after regular appointment. Initially, the period fixed was 15 years, later it was made to three different periods of 9 years, 18 years and 27 years. Subsequent Notification is dated 25.1.1992 which talks of promotion. Obviously, the promotion has to be from the existing cadre in service.
5. Stand of the appellants is that the appointments can be relatable to the existing cadre/service and in case of ad hoc and work charge service there is no reference to any cadre. The recruitment rules specifically refer to existing cadre/service. This position is clarified by a Notification dated 3.4.1993. The crucial paragraph is para 3 which speaks of action being taken in accordance with the recruitment rules. By a Notification of 17.2.1998, all previous orders were superseded.
6. Stand of the appellants in essence is that the High Court confused regular appointment made to the cadre/service with appointment to the post. It is also submitted that if there was no regularization there was no scope for any promotion. With reference to Rule 25(4) it is submitted that the same relates to prospective employment as is evident from the expression “occurrence of vacancy”. Starting point therefore is when the employee is born in the cadre/service. Ad hoc employees had no right to the post.
7. It is submitted that though reference was made to 1992 circular the same was misread. Since it was a wrong decision there is no question of any negative equality.
8. Learned counsel for the respondent in each case on the other hand submitted that similar issues were decided earlier and the special leave petitions had been dismissed. Further, in the case of LDCs also, the State did not question the correctness of the decision.
9. A few provisions of the Rajasthan Absorption of Surplus Personnel Rules, 1969 (in short the ‘Rules’) nee
State of Haryana v. Haryana Veterinary & AHTS Association
Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan
Indian Council of Agricultural Research v. T.K. Suryanarayan
Gursharan Singh v. New Delhi Municipal Committee
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Chakradhar Paswan v. State of Bihar
Prabhakar Rao v. State of A.P.
State of Maharashtra v. Digambar (1995) 4 SCC 683 – Relied upon. [Para 22]
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State of U.P. v. Synthetics and Chemicals Ltd.
Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court
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