1992 Supreme(Raj) 473

RAJASTHAN HIGH COURT
G.S.Singhvi, J.
Munna Lal Agrawal and three others - Appellant
Versus
The Rajasthan High Court and 4 others - Respondent
S.B.C.W.P. No. 4026 of 1990.
Decided On : 15-01-1992

The seniority of an employee can be determined on the basis of the date of regular appointment made in accordance with the procedure prescribed in the service rules or where the rules have not been framed, in accordance with the procedure prescribed by the administrative orders.

Headnote:

SENIORITIY - SUBORDINATE CIVIL COURTS MINISTERIAL ESTABLISHMENT RULES, 1958 - RAJASTHAN SUBORDINATE MINISTERIAL STAFF RULES, 1957 - RAJASTHAN SUBORDINATE CIVIL COURTS MINISTERIAL ESTABLISHMENT RULES, 1986 - RAJASTHAN CIVIL SERVICES (ABSORPTION OF SURPLUS PERSONNEL) RULES, 1969 - INTERPRETATION - APPOINTMENT OF LDCs - COMPETITIVE EXAMINATION - TEMPORARY APPOINTMENT - SENIORITY - DETERMINATION - PRINCIPLES.

Fact of the Case:

Petitioners challenged the order altering their seniority position in the seniority list dated 8-8-84 to their prejudice. They prayed that the order be quashed and set aside and the Respondents be directed to make promotions as per seniority list dated 8-8-84. Respondents Nos. 3, 4 and 5 were initially appointed on purely ad hoc basis in Census Department. On account of the abolition of the posts of Clerk in the Census Department, they were absorbed on temporary basis by the District and Sessions Judge, Jaipur City, Jaipur. Before their absorption, the Respondents Nos. 3 and 4 had neither passed the competitive examination under the Rajasthan Subordinate Civil Courts Ministerial Establishment Rules 1958 nor under the Rajasthan Subordinate Ministerial Staff Rules, 1957. They passed the competitive examination held in the year 1977 and were thereafter selected for regular appointment as L.D.Cs.

Finding of the Court:

The Court held that the Respondents No. 3 to 5 were appointed on purely temporary basis in the Census Department and therefore, their appointment cannot be treated as one made after following the procedure prescribed for making regular selection. None of the Respondents can be treated as member of service of the earst while Census Department and their appointment continued to be purely temporary and ad hoc on their absorption in the service of the Judgeship of District Judge, Jaipur City, Jaipur. Therefore in the Court's considered opinion, Respondents No. 3 to 5 cannot be asigned seniority on the basis of the total length of service or even on the basis of the date of their joining service in the Judgeship of District Judge, Jaipur City. The word 'ordinarily' used in Rule 21 of 1958 Rules or in Rule 26 of 1986 Rules cannot be stretched too far to confer power on the competent authority to assign seniority to Respondents No. 3 to 5 or other similarly situatted persons by counting their total length of service which include service on ad hoc/temporary appointment.

Issues: Whether the Respondents have correctly been assigned seniority on the basis of their length of service or on the basis of their date of joining, irrespective of the date of passing of the competitive examination by them.

Ratio Decidendi: The Court held that the seniority of the Respondents No. 3 to 5 could not be determined on the basis of their total length of service or from the date of their appointment in the service of the Judgeship of District Judge, Jaipur City Jaipur or from the date of their passing the competitive examination. The Court held that the word 'ordinarily' used in Rule 21 of 1958 Rules and Rule 26 of 1986 Rules, signifies that in the normal circumstances, the seniority shall be determined from the date of order of confirmation in the grade. Only in exceptional circumstances or in unusual circumstances, seniority can be determined by a criteria other than the date of order of confirmation. This, however, does not mean that the seniority can be determined on the basis of the principles which have not been accepted in the service jurisprudence applicable in this country.

Final Decision: Petition allowed. Order dated 2-11-1989 is declared as illegal and it is hereby quashed. The petitioners shall be assigned seniority above the Respondents No. 3 to 5 and their position as it was obtaining in the list dated 8-8-1984 should be restored. If promotions have been made on higher posts, in the meantime the cases of the petitioners shall be considered for such promotion retrospectively in accordance with the rules and on promotion they be given all consequential benefits.