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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5947      OF 2012 (Arising out of SLP (C) No. 29274 of 2009)

State of Haryana and others  … Appellants

Versus

Vijay Singh and others … Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Leave granted.

2. On  being  selected  by  the  District  Level  Committee  which  had  

considered the candidature of those sponsored by the Employment Exchanges,  

respondent Nos.1 to 13 were appointed as Masters in the subjects of Science,  

Maths  and  Social  Studies,  respondent  No.14  was  appointed  as  Physical  

Training Instructor  and respondent No.15  was  appointed as  Hindi Teacher  

purely on ad  hoc basis  between 1994 and 1996 by the District  Education  

Officers.  The relevant portions of one such order issued on 16.10.1995 are  

reproduced below:

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      “OFFICE OF THE DISTT. EDUCATION OFFICER, PANIPAT

       Order No.E-1/95/3515-65      Dated Panipat 16.10.1995

On the recommendation of the Distt. Level Committee,  the following candidates are hereby appointed purely on ad hoc  basis as Master/Mistresses in the subject noted against them in  the Haryana Education Service Non Gazetted Class  II (School  cadre) Men/Women branch (as the case may be) w.e.f. the they  join their duty in the institution indicated against their names in  the grade of Rs.1400-2600 plus usual allowances sanctioned by  the Haryana Government from time to time on the following terms  and conditions:-

Sl. No

Name  and  address  of  the candidate

Place of  posting

Remarks

S.S. Master (Male), General Category

1 to 3 xxxxxx xxxxxxx xxxxxxx

S,S. Master (Male) B.C. Category

1. xxxxxx xxxxxxx xxxxxxx

S,S. Master, S.C. Category (Male) Block A

1. xxxxxx xxxxxxx xxxxxxx

S,S. Master, Block B

2. xxxxxx xxxxxxx xxxxxxx

S,S. Master Male, ESM

1 & 2. xxxxxx xxxxxxx xxxxxxx

S,S. Mistress General Category

1 to 3 xxxxxx xxxxxxx xxxxxxx

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S,S. Mistress Category Scheduled Caste, Block A.

1. xxxxxx xxxxxxx xxxxxxx

Science  Master Male General Category

1. Vijay Singh s/o  Om Parkash  V.P.O. Palri  (Panipat)

G.S.S.S. Mandi Against  vacancy

2&3 xxxxxxx xxxxxxx xxxxxxx

Science Mistress General Category

1 & 2. xxxxxx xxxxxxx xxxxxxx

Math Master General Category Male

1 and 2. xxxxxx xxxxxxx xxxxxxx

Math Mistress General Category

1 xxxxxx xxxxxxx xxxxxxx

Terms & Conditions:

1. The above appointments are purely on ad hoc basis for six  months  or  till  the  candidates  are  available  for  regular  appointment whichever is earlier.  Their services are liable  to be terminated without assigning any reason or notice at  any time.

2 to 6        xx      xx      xx xx”

3. In furtherance of the policy decision taken by the State Government in  

the light of  the judgment of  the High Court  in Hassan Mohd.  v.  State  of  

Haryana 2004 (2) SCT 505, the services of the respondents were regularized  

w.e.f.  1.10.2003.   The  opening paragraph and  clause  5  of  the  terms  and  

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conditions  embodied  in  order  dated  3.8.2004/12.8.2004  passed  by  the  

Director,  Secondary Education,  Haryana for  regularization of  a  number of  

employees of District Ambala including respondent No.12 Prem Kumar are  

extracted below:  

“OFFICE OF THE DIRECTOR SECONDARY EDUCATION  HARYANA                              CHANDIGARH

ORDER No. 2/4-2004-E-V (5)   DATED CHANDIGARH THE 03.08.2004    

In  pursuance  of  the  decision  contained  in  the  Haryana  Govt.  letter  No.6/9/03-IGS-I  dated  03.10.2003,  the  following  Master/Mistress who were appointed on ad hoc/contractual basis  and have completed three years service upto 30.09.2003 and were  in service on that date are hereby appointed as officiating Mas- ters/Mistress  in  HES-III  School  Cadre  (Men's  Branch)  in  the  grade  of  Rs.5500-9000  (pre-revised)  plus  usual  allowances  as  sanctioned by the Haryana Government from time to time w.e.f.  01.10.2003 and posted at present place against vacant posts as  per following terms and conditions:-

Sr. No. Name of  the office and  

present place of posting

Date of appoint-

ment

Sh/Smt. Masters /Mistress Distt. Ambala

1. to 16.      xxxxx        xxxxxx  

xxxxx

Sh/Smt. Master/Mistress Distt. Ambala.

17.  to l9     xxxxxxx            xxxxxx  

xxxxx

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20. Prem Kumar,   GHS Kalpi  

01.03.1995

21. to  27.               xxxxx

xxxxxx

Sh/Smt. Science Master /Mistress Distt. Ambala.

29.  to  38.             xxxxxxx

xxxxxx

1 to 4 xx xx xx

5. They are put on probation for a period of two years in the  first instance from the date he joined his duty.  His result will be  particularly taken into consideration while assessing his perform- ance, if in the option of the appointing authority his work and  conduct has not been found satisfactory during probation period,  this period is liable to be extended provided that the total period  of probation including extension, if any, shall exceed 3 years or  his service will be dispensed with.

6 to 9 xx xx xx”

4. After  regularization  of  their  services,  the  respondents  submitted  

representations through their association and claimed that the period of ad-hoc  

service should be counted towards seniority because they were recruited on the  

basis of selection made by the District Selection Committee from among the  

candidates sponsored by the Employment Exchanges. The department did not  

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accept their plea and in the provisional gradation list of the Haryana Education  

Service Class III, their names were shown below those who were appointed on  

regular basis prior to 1.10.2003.

5. The respondents challenged the provisional gradation list in Civil Writ  

Petition No.2409/2008 on the ground that the same was discriminatory and  

prayed that in view of the judgment of this Court in Direct Recruit Class II  

Engineering Officers’ Association v. State of Maharashtra and others (1990) 2  

SCC 715, their seniority be fixed by taking into consideration the total length  

of  service  including the  ad-hoc service,  and  until then,  no  one  should be  

promoted to the post of lecturer.

6. In the written statement filed on behalf of the appellants, it was pleaded  

that the Provisional Gradation List was prepared in accordance with Rule 11 of  

the Haryana State Education School Cadre (Group ‘C’) Service Rules, 1998  

(for  short,  ‘the  1998  Rules’)  and the service  rendered by the respondents  

before regularization cannot be taken into consideration for the purpose  of  

fixation of seniority.  

7.     The Division Bench of the High Court relied upon the judgments in  

Direct  Recruit  Class  II  Engineering  Officers’  Association  v.  State  of  

Maharashtra and others (supra), Dr.Chandra Prakash v. State of U.P. (2002)  

10  SCC  710,  and  order  dated  4.7.2008  passed  in  C.W.P.No.7862/2006,  

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Hanumant  Singh  vs.  State  of  Haryana  and  others,  and  declared  that  the  

seniority of  the  respondents  be  fixed by taking into account  their  ad  hoc  

service and, accordingly, they should be considered for promotion to the posts  

of lecturer.

8. Shri Neeraj Jain, learned senior counsel for the appellants referred to  

the  provisions of  the Punjab Educational Service,  Class  III,  School Cadre  

Rules,  1955  (for  short,  ‘the  1955  Rules’),  as  applicable  to  the  State  of  

Haryana, the 1998 Rules, Notification dated 28.1.1970 issued by the Governor  

of  Haryana  under  Article  309  of  the  Constitution  for  creation  of  the  

Subordinate  Services  Selection  Board  (for  short,  ‘the  Board’)  as  also  

Notification dated 29.6.1973, by which Clause 6 of the earlier notification was  

substituted, and argued that even though the respondents were appointed as  

Masters  in  different  subjects  and  Physical  Training  Instructor  and  Hindi  

Teacher against the sanctioned posts after being sponsored by Employment  

Exchanges and on being recommended by the District Selection Committee,  

their seniority cannot be fixed on the basis of total length of service because  

their appointments were purely ad hoc and were subject to the availability of  

the candidates selected for regular appointment.  Shri Jain pointed out that  

under the 1955 Rules, the Director of Education and not the District Education  

Officer  was  competent  to  make appointment on the  posts  of  Masters  and  

argued that the services rendered by the respondents on the basis of ad hoc  

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appointments made by the District Education Officers cannot be clubbed with  

post  regularization  service  for  the  purpose  of  determination  of  seniority.  

Learned  senior  counsel  further  argued  that  initial  appointments  of  the  

respondents cannot be treated as regular because the same were not made on  

the  recommendations  of  the  Board  constituted  vide  Notification  dated  

28.1.1970.  Shri Jain pointed out that under the 1998 Rules also the appointing  

authority for the posts of Masters/Mistresses is the Joint Director of Schools  

and  not  the  District  Education  Officer  and  argued  that  the  High  Court  

committed serious error by directing fixation of the seniority of the respondents  

by counting their ad hoc service ignoring that their initial appointments were  

not made by the competent authority on the recommendations of the Board.

9. Shri P.S. Patwalia, learned senior counsel for the respondents supported  

the direction given by the High Court and argued that the respondents are  

entitled to have their seniority fixed on the basis of total length of service  

because they were initially appointed after following the procedure prescribed  

for regular recruitment.  Shri Patwalia emphasized that the posts against which  

the respondents were appointed between 1994 and 1996 were duly sanctioned  

and  the  appointments  were  made  by  the  District  Education Officers  from  

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among the candidates who were sponsored by the Employment Exchanges and  

whose  names  were  recommended  by  the  District  Selection  Committees.  

Learned senior counsel argued that the use of phrase ‘ad hoc’ in the orders  

issued by the District Education Officers is not conclusive and the High Court  

rightly treated the respondents’ initial appointment as regular for the purpose  

of fixation of seniority.  Shri Patwalia relied upon the principles laid down by  

the  Constitution  Bench  in  Direct  Recruit  Class  II  Engineering  Officers’  

Association v. State of Maharashtra and others (supra), and the judgments in  

State of West Bengal v. Aghore Nath (1993) 3 SCC 371,  M.K. Shanmugan v.  

U.O.I. (2000) 4 SCC 476, Rudra Kumar Sain and others v. Union of India &  

others, (2000) 8 SCC 25, Dr. Chandra Prakash v. State of U.P. (supra) and S.  

Sumyan and others v. Limi Niri & others, (2010) 6 SCC 791, and argued that  

once the ad hoc appointments of the respondents were regularized, there could  

be no justification to exclude their past service for the purpose of fixation of  

seniority.

10. We have considered the respective submissions.  Rules 2(a), (e), 3, 8  

and 9 of the 1955 Rules, which were applicable to the State of Haryana till the  

enactment of the 1998 Rules, Rules 6, 10 and 11 of the 1998 Rules and the  

relevant extracts of Notifications dated 28.1.1970 and 29.6.1973 issued by the  

Governor  of  Haryana  under  Article  309  of  the  Constitution,  which  have  

bearing on the decision of this appeal, are reproduced below:

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THE 1955 RULES

“2 (a)  “The Director” means the Director of Public Instruction,  Punjab for the time being.

(e) “Direct appointment” means an appointment made otherwise  with by promotion within the service or by transfer of an official  serving in another department of any State in India or the Gov- ernment of India.

3. Authority  competent  to  make  appointment:  -  All  appointments  to  posts  in  the  service  shall  be  made  by  the  Director  except  that  Divisional  Inspector  /  Inspectorass  of  School or the Principals of Government Colleges may make any  temporary or officiating appointment to a post other than that of  the  Headmaster  or  Headmistress  or  an  Assistant  District  Inspector  of  Schools  i.e.,  for  a  period  not  exceeding  three  months of any time.

8. Probation: - i) Members of the service, who are recruited  directly against permanent vacancies shall be on probation in the  first instance for one year.

ii) Approved officiating service shall be reckoned as  period  spent  on  probation,  but  no  member  who  has  officiated in any appointment for one year, may claim to  be confirmed until he is appointed against a  permanent  vacancy.

iii) On the completion of the period of probation the  Director may confirm the member in his / her appointment  or  if  his  /  her  work  or  conduct  during the  period  of  probation has been in his opinion unsatisfactory, he / she  may dispense with his / her service or may extend his / her  period of probation by such period as he may think fit, or  reverse him / her to his her former post, if he / she has  been  recruited  otherwise  than  by  direct  appointment,  provided  that  the  total  period  of  probation  including  extensions, if any, shall not exceed three years.

iv) Services spent on deputation to a corresponding or  higher post may be allowed to count towards the period of  

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probation fixed under this rule,  if there  is  a  permanent  vacancy against which such member can be confirmed.

9. Seniority of members of the services: - The Seniority inter  se of members of the services holding the same class of posts  and in the same/identical grades of pay shall be determined by  the dates of their confirmations in such posts provided that, if  two or more members are confirmed in the same class or post  and in the same grades of pay on the same date, their seniority  shall be determined as follows:-

a) A  member  appointed  by  promotion  within  the  service shall be considered senior to member appointed  otherwise.

b) A  member  appointed  by  transfer  from  another  department of any Government of India shall be senior to  a member recruited by direct appointment.

c) In  the  case  of  members  who  are  appointed  by  promotion, seniority shall be determined according to the  seniority in the appointment last held.

d) In  the  case  of  members  who  are  recruited  by  transfers  from  other  services  or  posts  in  Education  Department of Government or any other Department of  any government in India,  seniority shall  be  determined  according to seniority in the appointments previously held  in the cadre of that service.

e) In  the  case  of  members  who  were  both  or  all  recruited by direct appointment and shall be determined  according to the seniority before appointment and if their  appointments  were  made on the  same date,  then older  members shall be senior to a younger member.

f) In  the  case  of  members,  who  are  recruited  by  transfer  from  different  departments,  seniority  shall  be  determined according to the scale  pay preference being  given to a member who was drawing a higher rate or pay  in his previous appointment and if the rate of scale of pay  drawn is the same, an older member shall be senior to a  younger one.”

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****

THE 1998 RULES

“6(1) Appointments to the posts in the Service in case of Middle  School  Headmaster,  Social  Studies  Master,  Science  Master,  Mathematics  Master,  Agriculture  Master,  Commerce  Master,  Demonstrator  in  Physical  Education  (P.T.  Master),  Home  Science Master, Art Master and Music Master shall be made by  Joint Director Schools.

(2) Appointments  to  the  posts  in  the  Service  in  case  of  Sanskrit  Teacher,  Hindi  Teacher,  Punjabi  Teacher,  Physical  Training Instructor, Art and Craft Teacher (Drawing Teacher),  Tailoring  Teacher  and  Tabla  Player  shall  be  made  by  the  respective District Education Officers of the concerned district.

10 (1) Persons appointed to any post in the Service shall remain  on probation for a period of two years, if appointed by direct re- cruitment, and one year if appointed otherwise, -- Provided that:- (a) any period, after such appointment, spent on deputation on a  corresponding or a higher post shall count towards the period of probation;

(b) any period of work in equivalent or higher rank, prior to ap- pointment to any post in the Service, may, in the case of an ap- pointment by transfer, at the direction of the appointing author- ity, be allowed to count towards the period of probation fixed  under this rule; and

(c) any period of officiating appointment shall be reckoned as  period spent on probation, but no person who has so officiated  shall, on the completion of the prescribed period of probation; be  entitled to be confirmed, unless he is appointed against a per- manent vacancy.

(2) If, in the opinion of the appointing authority, the work or  conduct of a person during the period of probation is not satis- factory, it may,

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(a) If such person is appointed by direct recruitment, dispense  with the services; and

(b) If such person is appointed otherwise, than by direct recruit- ment, - (i) revert him to his former post; or

(ii) deal with him in such other manner as the terms and condi- tions of his previous appointment permit.

(3) On the completion of period of probation of a person, the ap- pointing authority may:-

(a) if  his work or conduct has, in its opinion, been satisfactory,- (i) confirm such person from the date of his appointment, if ap- pointed against a permanent vacancy; or (ii) confirm such person from the date from which a permanent vacancy occurs, if appointed against a temporary vacancy; or (iii) declare that he has completed his probation satisfactorily, if  there is no permanent vacancy; or

(b) if his work or conduct has, in its opinion, been not satisfact- ory:- (i) dispense with his service, if appointed by direct recruitment,  if appointed otherwise, revert him to his former post or deal with  him in such other manner as the terms and conditions of his previous appointment permit; or (ii) extend his period of probation and thereafter pass such order,  as it could have passed on the expiry of the first period of proba- tion; Provided that the total period of probation including extension, if  any, shall not exceed three years.

11. Seniority, interse of the members of the service, shall be  determined by the length of continuous service on any post in the  service

Provided that where there are different cadres in the Service, the  seniority shall be determined separately for each cadre;

Provided further that in the case of member appointed by direct  recruitment, the order of merit determined by the Commission or  

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any other recruiting authority as the case may be, shall not be  disturbed in fixing the seniority;

Provided  further  that  in  the  case  of  two  or  more  members  appointed on the same date, their seniority shall be determined  as follows:-

(a) a member appointed by direct recruitment shall be senior to  member appointed by promotion or by transfer;

(b)  a  member appointed  by promotion shall  be  senior  to  a  member appointed by transfer.

(c)  in  the  case  of  a  member  appointed  by  promotion or  by  transfer, seniority shall be determined according to the seniority  of  such  members  in  the  appointment  from  which  they  are  promoted or transferred; and

(d) in the case of members appointed by transfer from different  cadres,  their  seniority  shall  be  determined according to  pay,  preference being given to a member, who was drawing a higher  rate of pay in his previous appointment, and if the rates of pay  drawn are also the same, then by the length of their service in the  appointments and if the length of such service is also same, the  older member shall be senior to the younger member.”

NOTIFICATION DATED 28.01.1970

“GENERAL ADMINISTRATION DEPARTMENT

GENERAL SERVICES

NOTIFICATION

The 28th January, 1970

No.523-3GS-70/2068.—In  exercise  of  the  powers  conferred  by  Article  309  of  the  Constitution of  India,  and  in  modification of  all  other  rules  in this  behalf,  the  Governor of  Haryana  hereby  constitutes,  with  effect  from the  date  of  the  publication of  this  notification,  Subordinate  Services  Selection  Board.  The constitution of the Board, the terms and conditions of  

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service  of  the  members  thereof  and  its  functions  shall  be  as  follows:

6.   Functions :- All appointments to non-gazetted Class III posts  under the Haryana Government, except appointments of officers  and employees of the Punjab and Haryana High Court provided  for in Article 229 of the Constitution of India, shall be made on  the advice of the Board.

Provided that the State Government shall be competent to exclude  any such posts from the purview of the Board.”

NOTIFICATION DATED 29.06.1973

“PART-III

HARYANA GOVERNMENT

GENERAL ADMINISTRATION DEPARTMENT

Notification

The 29th June, 1973

No. G.S.R.88/Const./Art.309/73.— In  exercise  of  the  powers conferred by article 309 of the Constitution of India, and  all  other  powers  enabling him in this  behalf,  the  Governor of  Haryana  hereby  makes  further  amendment  in  the  Haryana  Government,  General  Administration  Department,  General  Services,  Notification  No.523-3GS-70/2068,  dated  the  28th  January, 1970.

In the said notification, for para 6, the following para shall  be substituted, namely:-

“6.  Functions:-  The Board shall be consulted on the following  matters:-

(a) appointments to Class III posts under the State Government,  except appointments of officers and employees of the Punjab  and Haryana High Court provided for in article 229 of the  Constitution of India;

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(b) promotions and transfers from one service or post to another  service or post pertaining to Class III and Class IV  posts;

(c) disciplinary  matters  pertaining  to  Class  III  and  Class  IV  Government employees;

(d) methods of recruitment and the principles to be followed in  making appointments to Class III and Class IV posts under  the State Government; and

(e) appointments to posts carrying an initial pay of not less than  one hundred and fifty rupees per mensem and not more than  three hundred and fifty rupees per mensem under a Municipal  Committee,  Notified  Area  Committee,  Town  Improvement  Trust, Zila Parishad or Panchayat Samiti except appointment  of the Excecutive Officer of a Municipal (Executive Officers)  Act, 1931, or the Patiala Municipal (Executive Officers) Act,  2003 Bk.:

Provided that it shall not be necessary to consult the Board in  respect of such posts and matters as the State Government may  by notification, specify.”

11. It is not in dispute that till the framing of the 1998 Rules, appointments  

to the posts of Masters and Teachers were governed by the 1955 Rules.  In  

terms of Rule 3 of the 1955 Rules, all appointments to posts in the service  

were  required  to  be  made  by  the  Director  with  the  exception  that  the  

Divisional Inspector/Inspectorass of the School and Principals of Government  

Colleges could make temporary or officiating appointment to a  post  other  

than that of the Headmaster or Headmistress or an Assistant District Inspector  

of Schools and the tenure of such appointment could not exceed three months.  

In  terms  of  Rule  8  of  the  1955  Rules,  a  person  appointed  by  direct  

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instance and on completion of the period of probation, the Director could  

confirm the probationer.  If the work or conduct of the probationer was found  

unsatisfactory, the Director could either terminate his/her service or extend  

the period of probation upto a maximum period of three years.  Clause 2 of  

Rule 8 postulated counting of officiating service as period spent on probation.  

The basic criteria for fixation of seniority embodied in Rule 9 was the date of  

confirmation.

12. Rule 6(1) of the 1998 Rules lays down that the Joint Director, Schools  

shall  be  competent  to  make  appointment  to  the  posts  of  Middle  School  

Headmaster,  Social Studies Master,  Science Master,  Mathematics Master,  

Agriculture Master, Commerce Master, Demonstrator in Physical Education  

(P.T. Master), Home Science Master, Art Master and Music Master.  Sub-

rule (2) of Rule 6 postulates appointment on the posts of Sanskrit, Hindi and  

Punjabi  Teacher,  Physical  Training  Instructor,  Art  and  Craft  Teacher  

(Drawing Teacher),  Tailoring Teacher and Tabla Player by the concerned  

District Education Officers. Rule 10 of the 1998 Rules is substantially similar  

to Rule 8 of the 1955 Rules and lays down that any person appointed by  

direct recruitment shall remain on probation for a period of 2 years which can  

be extended upto a maximum of three years.  On satisfactory completion of  

the period of probation, the appointing authority could confirm such person  

from the date of occurrence of permanent vacancy and if there was no such  

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vacancy  then  grant  a  declaration  that  the  appointee  has  satisfactorily  

completed the period of probation. Rule 11 lays down that seniority inter se  

of the members of service shall be determined by the length of continuous  

service.   Third proviso to this rule and Clauses (a) to (d) of that proviso  

regulate the fixation of seniority in different eventualities.

13. An analysis of Notification dated 28.1.1970 shows that the Governor  

of Haryana had, in exercise of the powers conferred upon him by Article 309,  

constituted the Board. The primary function of the Board is to give advice in  

the matter of appointment to all non-Gazetted Class III posts under the State  

Government.   By Notification dated  29.6.1973,  the scope  of the Board’s  

functions was enlarged and consultation with the Board was made mandatory  

in the matters of promotion to Class III posts under the State Government;  

promotions and transfers from one service or post to another service or post  

pertaining to Class III and Class IV, disciplinary matters pertaining to Class  

III and Class IV employees, methods of recruitment and the principles to be  

followed in making appointments to Class III and Class IV posts, etc.  By  

virtue  of  proviso  to  the  amended  Clause  6,  the  State  Government  is  

empowered  to  issue  notification  to  dispense  with  the  requirement  of  

consultation with the Board in respect of such posts and matters as may be  

specified therein.

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14. We  shall  now  consider  whether  the  respondents  were  regularly  

appointed  as  Masters,  Physical  Training  Instructor  and  Hindi  Teacher  

between 1994 and 1996, whether the competent authority should have taken  

into consideration their total length of service for the purpose of fixation of  

seniority  and  whether  the  High  Court  rightly  applied  the  ratio  of  the  

judgments  of  this  Court  in  Direct  Recruit  Class  II  Engineering Officers’  

Association v. State of Maharashtra (supra) and Dr. Chandra Prakash v. State  

of U.P.  (supra) for the purpose of directing refixation of the respondents’  

seniority.

15. A reading of  order  dated  16.10.1995  issued  by  District  Education  

Officer, Panipat makes it crystal clear that even though respondent No.1 –  

Vijay Singh was appointed as Science Master on the recommendations of the  

District Level Committee, his appointment was purely ad hoc with a tenure of  

six months or  till the  availability of  a  candidate  for  regular  appointment,  

whichever was earlier.  The other respondents were appointed in the same  

manner  with  similar  stipulation.   The  reason  why  the  respondents  were  

appointed on purely ad-hoc basis is not far to seek.  The concerned District  

Education Officers did send requisitions to the Employment Exchanges and  

appointments  were  made  on  the  recommendations  of  the  District  Level  

Committee but all this was not in consonance with the mandate of the 1955  

Rules  and  Notifications  dated  28.1.1970  and  29.6.1973.   At  the  cost  of  

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repetition, we deem it proper to mention that in terms of Rule 3 of the 1955  

Rules, only the Director was competent to make appointments on the posts to  

which  those  rules  were  applicable  with  the  exception  that  Divisional  

Inspector/Inspectorass of School or the Principals of Government Colleges  

could  make  temporary  or  officiating appointments  on  certain posts  for  a  

maximum period of three  months.   After  the Board was  constituted vide  

Notification dated 28.1.1970, the Director could make appointment only on  

the recommendation of the Board unless the State Government was to issue  

notification under proviso to Clause 6 of Notification dated 29.6.1973.   In  

terms of Rule 8 of the  1955  

Rules,  every  person  appointed  by  direct  recruitment  was  required  to  be  

placed on probation for a period of one year.  The respondents were neither  

appointed by the Director on the recommendations of the Board nor they  

were placed on probation.  As a matter of fact, they were appointed on purely  

ad  hoc  basis  without  following  the  procedure  prescribed  for  regular  

appointment.  Therefore, the mere fact that the ad hoc appointments of the  

respondents  were  preceded  by  sending  requisitions  to  the  Employment  

Exchanges and recommendations by the District Selection Committee cannot  

lead to an inference that they were appointed on regular basis.

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16. It was neither the pleaded case of the respondents nor any document  

was produced before the High Court to show that the State Government had  

amended the 1955 Rules and empowered the District Education Officer to  

make appointment on the posts of Masters, Physical Training Instructor and  

Hindi  Teacher  or  the  requirement  of  consultation  with  the  Board  was  

dispensed  with  by  issuing  notification  under  proviso  to  Clause  6  of  

Notification dated 29.6.1973.  Unfortunately, the High Court overlooked the  

fact that the respondents were neither appointed by the competent authority  

on  the  recommendations  made  by  the  Board  nor  they  were  placed  on  

probation.  Therefore, the conclusion recorded by the High Court that the  

respondents’ initial appointments were regular and, therefore, ad hoc service  

was liable to be counted for the purpose of fixation of seniority is legally  

unsustainable.   

17. The issue relating to fixation of seniority deserves to be considered  

from another angle.  In terms of Rule 9 of the 1955 Rules, the seniority inter  

se  of members of the service holding the same class  of posts  and in the  

same/identical grades of pay is required to be determined by the dates of their  

confirmation.  Rule 11 of the 1998 Rules lays down that seniority inter se of  

members  of  the  service  shall  be  determined by the  length of  continuous  

service on any post.  The respondents were appointed on purely ad hoc basis  

for  six  months and  they continued to  serve  as  ad  hoc  Masters,  Physical  

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Training Instructor and Hindi Teacher till the regularization of their service  

w.e.f. 1.10.2003.  Therefore, their seniority could not be fixed either under  

Rule 9 of the 1955 Rules or Rule 11 of the 1998 Rules by counting their  

service from the date of initial appointments.

18. Before concluding, we consider it proper to notice the judgments on  

which reliance has been placed by learned counsel for the respondents.  This  

consideration needs  to  be  prefaced  with an  observation that  the  cases  in  

which recruitment and conditions of service including seniority are regulated  

by the law enacted by Parliament or the State Legislature or the rules framed  

under Article 309 of the Constitution, the general proposition laid down in  

any judgment cannot be applied de hors the relevant statutory provisions and  

dispute  relating  to  seniority  has  to  be  resolved  keeping  in  view  such  

provisions.

19. In Direct Recruit Class II Engineering Officers’ Association v. State of  

Maharashtra & others (supra), the Constitution Bench considered the dispute  

of seniority between the direct recruits and the promotees in the light of the  

provisions contained in the Bombay Service of Engineers (Class I and Class  

II) Recruitment Rules, 1960, the Bombay Service of Engineers (Class I and  

Class II) Recruitment Rules, 1970, the Reorganised Bombay State Overseers  

and Deputy Engineers Seniority Lists Rules, 1978, the Reorganised Bombay  

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State  Assistant  Engineers  and  Executive  Engineers  Seniority  Lists  Rules,  

1981,  the Maharashtra  Service  of  Engineers  (Regulation of  Seniority and  

Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982,  

etc.  After examining the relevant rules, the Court culled out the following  

propositions:

“(A) Once an incumbent is appointed to a post according  to rule, his seniority has to be counted from the date of his  appointment  and  not  according  to  the  date  of  his  confirmation.

The  corollary  of  the  above  rule  is  that  where the  initial appointment is only ad hoc and  not  according  to  rules and made as a stop-gap arrangement, the officiation  in such  post cannot be taken into account for considering   the seniority.  

(B) If the initial appointment is not made by following the procedure laid  down by the rules  but  the  appointee continues in the post uninterruptedly till the regularisation  of his service in accordance with the rules, the period of  officiating service will be counted.

(C)  When appointments  are made  from  more  than one  source,  it is permissible to fix the ratio for recruitment  from the different sources, and if rules are framed in this  regard they must ordinarily be followed strictly.

(D)  If it becomes impossible to adhere to the existing  quota rule, it should be substituted by an appropriate rule  to  meet the needs of the situation. In case,  however,  the  quota  rule  is not followed continuously for  a  number  of  years  because it was impossible to do so the  inference  is  irresistible that the quota rule had broken down.

(E)  Where  the  quota  rule  has  broken  down  and  the  appointments  are made from one source in excess of the  quota,  but  are   made   after  following  the  procedure  

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prescribed   by  the  rules   for   the  appointment,  the  appointees  should  not  be pushed down   below   the  appointees from  the  other  source inducted in the service  at a later date.

(F)  Where the rules permit the authorities to  relax the  provisions  relating to the quota, ordinarily a  presumption should be raised that there was such relaxation when  there  is a deviation from the quota rule.  

(G)  The quota for recruitment from the different  sources may  be prescribed by executive instructions, if  the  rules are silent on the subject.

(H) If the  quota  rule  is  prescribed  by  an  executive  instruction, and is not followed continuously for a number  of  years, the inference is that the  executive   instruction  has ceased to remain operative.

(I) The posts held by the permanent Deputy Engineers  as well as the officiating Deputy Engineers under the State  of Maharashtra belonged to the single cadre of  Deputy  Engineers.

(J) The  decision  dealing  with  important  questions  concerning  a  particular  service  given  after  careful  consideration should be respected rather than scrutinised  for finding out any possible error. It is not in the interest of  Service to unsettle a settled position.”

20. In State of West Bengal v. Aghore Nath (supra), the three Judge Bench  

considered  an  apparent  contradiction  in  conclusions  (A)  and  (B)  in  the  

judgment of the Constitution Bench, and observed:

“22. There can be no doubt that these two conclusions  have to be read harmoniously, and conclusion (B) can not  

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cover cases  which are expressly excluded by conclusion  (A).   We may, therefore, first refer to conclusion (A).  It is  clear  from conclusion (A) that  to enable seniority to  be  counted  from  the  date  of  initial  appointment  and  not  according to the date of confirmation, the incumbent of the  post has  to  be initially appointed, according to rules.  The  corollary set out  in conclusion (A), then is, that where the  initial appointment  is only ad hoc and not according to  rules  and made  as  a stop-gap arrangement,  

the   officiation  in such posts   cannot   be   taken into  account  for  considering  the  seniority.   Thus,  the  corollary in conclusion (A) expressly excludes the category  of cases where the initial appointment is only ad hoc and  not according to rules, being made only  as  a  stop-gap  arrangement.  The case of the writ petitioners squarely falls  within this corollary in conclusion (A), which  says  that  the officiation in such  posts  cannot  be taken into account  for counting the seniority.”  

“25.   In  our opinion  the conclusion (B) was added to  cover  over   a  different   kind of  situation,  wherein  the  appointments  are  otherwise   regular,   except  for  the  deficiency  of   certain procedural   requirements   laid  down by the rules.   This  is clear from the opening words  of the conclusion (B),  namely, 'if  the  initial appointment  is not made by  following the procedure  laid down by the  rules' and the later  expression 'till  the regularisation of his  service in accordance with  the  rules'.   We  read  conclusion (B), and it must be so read to reconcile with  conclusion  (A),  to  cover  the  cases  where  the  initial  appointment  is  made  against  an  existing  vacancy,  not  limited  to  a  fixed period of  time or   purpose   by the  appointment  order  itself,  and  is  made  subject  to the  deficiency in the  procedural  requirements  prescribed  by  the rules  for  adjudging suitability of the appointee  for  the post  being  cured  at the  time  of  regularisation, the  appointee being eligible and qualified in every manner for  a regular  appointment  on  the  date  of  initial  appointment  in such  cases.  Decision about the nature of  the appointment, for determining whether it falls in this  category, has to be made on the basis of the terms of the  

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initial  appointment itself and the provisions in the rules.  In  such  cases,  the  deficiency  in  the  procedural  requirements laid down by the rules has to be cured at the  first  available  opportunity,  without  any  default  of  the  employee,  and  the  appointee  must  continue  in the  post  uninterruptedly till the regularization of his  service,  in  accordance with the rules.   In such cases, the appointee  

is  not  to  blame for  the  deficiency  in  the   procedural  requirements under the rules at  the time  of his  initial  appointment,  and  the  appointment  not-being limited   to  a fixed period of time is intended  to  be  a regular  appointment,   subject  to  the   remaining   procedural  requirements  of the rules being fulfilled at the  earliest. In  such  cases also, if there be any delay  in  curing  the  defects on  account  of any fault  of the   appointee,  the  appointee  would  not get the full benefit  of the   earlier  period on account of his default, the benefit being confined  only  to  the  period for which he is not  to  blame.  This  category  of  cases is different from those covered  by   the  corollary   in   conclusion  (A)  which  relates   to  appointment  only   on   ad   hoc  basis  as  a  stop-gap  arrangement  and not according  to rules.  It is, therefore,  not correct to say, that  the  present  cases  can fall  within  the  ambit  of conclusion (B), even though they are  squarely covered by the corollary in conclusion (A).”

21. In M.K.  Shanmugam v.  U.O.I.  (supra),  another  three  Judge  Bench  

referred to the aforementioned two judgments and observed:

“If the adhoc selection is followed by regular selection,  then the benefit of ad hoc service is not admissible if ad  hoc appointment is in violation of the rules.  If the ad hoc  appointment has been made as a stopgap arrangement and  where  there  was  a  procedural  irregularity  in  making  appointments according to rules and that irregularity was  subsequently rectified, the principle to be applied in that  case was stated once again.  There is difficulty in the way  of the appellants to fight out their case for seniority should  be reckoned by reason of the length of the service whether  

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ad  hoc  or  otherwise  inasmuch  as  they  had  not  been  recruited regularly.  As stated earlier, the appellants were  regularly found fit for promotion only in the year 1977 and  if  that  period  is  reckoned  their  cases  could  not  be  considered as found by the Tribunal.  The view expressed  by this Court in these cases have been again considered in  the  decisions  in  Anuradha  Bodi  (Dr)  v.  Municipal  Corporation of Delhi (1998) 5 SCC 292, Keshav Deo v.  State of U.P., (1999) 1 SCC 280, Major Yogendra Narain  Yadav  v.  Bindeshwar  Prasad,  (1997)  2  SCC  150,  I.K.  Sukhija v. Union of India, (1997) 6 SCC 406, and Govt. of  A.P. v. Y. Sagareswara Rao, 1995 Supp (1) SCC 16, but  all  these  decisions  do  not  point  out  that  in  case  the  promotions  had  been  made  ad  hoc  and  they  are  subsequently regularized in the service in all the cases, ad  hoc  service  should  be  reckoned  for  the  purpose  of  seniority.  It is only in those cases where initially they had  been recruited even though they have been appointed ad  hoc the recruitment was subject to the same process as it  had been done in the case of regular appointment and that  the same was not a stopgap arrangement.”

22. In State of Haryana v. Haryana Veterinary & AHTS Association  

and another (2000) 8 SCC 4,  the three Judge Bench considered the  

question whether the ad hoc service rendered by the respondents in the  

cadre of Assistant Engineers can be added to their regular service for the  

purpose  of  higher  pay  scale.   While  reversing the  judgment  of  the  

majority  of  the  Full  Bench  which  had  ruled  in  favour  of  the  writ  

petitioner and declared that ad hoc service was to be clubbed with the  

regular service for the purpose of grant of financial benefits, this Court  

held:

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“A combined reading of the aforesaid provisions of  the Recruitment Rules  puts  the controversy beyond any  doubt and the only conclusion which could be drawn from  the aforesaid Rules is that the services rendered either on  an ad hoc basis or as a stopgap arrangement, as in the case  in hand from 1980 to 1982 cannot be held to be regular  service for getting the benefits of the revised scale of pay  or  of  the  selection  grade  under  the  government  memorandum  dated  2-6-1989  and  16-5-1990,  and  therefore, the majority judgment of the High Court must be  held  to  be  contrary  to  the  aforesaid  provisions  of  the  Recruitment Rules, consequently cannot be sustained.  The  initial letter of appointment dated 6-12-1979 pursuance to  which respondent Rakesh Kumar joined as am Assistant  Engineer  on  an  ad  hoc  basis  in  1980  was  also  placed  before  us.   The  said  appointment  letter  unequivocally  indicates  that  the  offer  of  appointment  as  Assistant  Engineer was on ad hoc basis and clauses 1 to 4 of the said  letter further provides that the appointment will be on an  ad hoc basis for a period of 6 months from the date  of  joining and the salary was a fixed salary of Rs.400 p.m. in  the scale of Rs.400 to Rs.1100 and the services were liable  to  be  terminated  without  any  notice  and  at  any  time  without assigning any reason and that the appointment will  not enable the appointee any seniority or any other benefit  under the Service Rules for the time being in force and will  not count towards increment in the time scale.  In view of  the aforesaid stipulations in the offer of appointment itself  we really fail to understand as to how the aforesaid period  of  service  rendered  on ad  hoc  basis  can  be  held to  be  service on regular basis.  The conclusion of the high Court  is contrary to the very terms and conditions stipulated in  the offer of appointment and, therefore, the same cannot be  sustained.”

23. In  Dr.  Chandra  Prakash  v.  State  of  U.P.  (supra),  the  Court  

interpreted the U.P. Medical Service (Men’s Branch) Rules, 1945, U.P.  

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Medical  Services  (Men’s  Branch)  (Amendment)  Rules,  1981,  U.P.  

Regularisation of Ad Hoc Appointments (on Posts within the Purview of  

the Public Service Commission) Rules, 1979 and held that the appellants  

who  had  been  appointed  against  substantive  vacancies  and  were  

continuing from 1965-1976 to 1983 and were enjoying all the benefits of  

regular  service  are  entitled  to  seniority  from  the  date  of  initial  

appointment.  The Court also observed that the ‘rule of seniority’ had  

been interpreted by the Court for a long period of time and it would not  

be proper to upset the principles laid down in other judgments.

24. None of the aforesaid judgments can be read as laying down a  

proposition of law that a person who is appointed on purely ad hoc basis  

for a fixed period by an authority other than the one who is competent to  

make regular appointment to the service and such appointment is not  

made by the specified recruiting agency is entitled to have his ad hoc  

service counted for the purpose of fixation of seniority.  Therefore, the  

respondents,  who  were  appointed  as  Masters  in  different  subjects,  

Physical Training Instructor and Hindi Teacher on purely ad hoc basis  

without following the procedure prescribed under the 1955 Rules are  

not entitled to have their seniority fixed on the basis of total length of  

service.  As a corollary to this, we hold that the direction given by the  

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High Court for refixation of the respondents’  seniority by counting the  

ad hoc service cannot be approved.

25. In the result,  the appeal is allowed,  the impugned order is set  

aside and the writ petition filed by the respondents is dismissed.  The  

parties are left to bear their own costs.

                                                 .………….….…………………. …J.

[G.S. Singhvi]

…………..….………………….…J.         [Sudhansu Jyoti Mukhopadhaya]

New Delhi, August 22, 2012.

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