Judgment:
B.S. Chauhan, J.
1. This reference has been made to a Larger Bench by the order dated 14.7.2004 of the learned Chief Justice, for resolving the issue as to whether the service rendered by an employee on ad hoc basis can be counted for the purposes of determining the seniority, promotion etc. as two Division Benches of this Court in Writ Petition No. 2605 of 2002 (Arjun Ravi Das v. Secretary, Minor Irrigation Department and Rural Engineering Service and Ors., decided on 27.2.2004), [Reported in (2004) 2 UPLBEC 1248 (DB)] and in Writ Petition No. 9940 of 2001 (N.K. Tripathi v. The Secretary, Minor Irrigation Department, decided on 13.2.2003) [Reported in (2004) 1UPLBEC 674 (DB)], have taken contrary views. Both the aforesaid cases relate to the same department. As large number of cases have been referred for determining the issue involved, Writ Petition No. 10504 of 2004, Farhat Hussain Azad v. State of U.P. and Ors., has been taken to be the leading case.
2. The Rural Engineering Department was constituted in the year 1972, in view of the fact that there had been an immense increase in the Engineering work in rural development. Initially no separate Rules were framed in respect of the officers of the said department particularly officers who subsequently stood designated as Junior Engineers, Assistant Engineers and all of them were to be governed by the General Rules applicable to other Government Servants. In the beginning large number of officers came on deputation from Public Works Department and Minor Irrigation and stood absorbed in rural engineering service. Direct recruitment was also made through the U.P. Public Service Commission (hereinafter called the 'Commission') on the regular basis. In order to regularise the officers working purely on ad hoc basis, the U.P. Regularization of ad hoc Appointments (On Post within the Purview of the Public Service Commission) Rules, 1979 (hereinafter called the 'Rules 1979') were enforced. The said Rules, 1979 provided for regularization of those ad hoc employees who had been in service before 1st January, 1977 and continued thereafter as such on the date of commencement of the said Rules, 1979. The said Rules stood extended vide notification dated 7.8.1989 for considering the cases of regularization of those ad hoc employees who had been in service on 1st October, 1986 and before and were continuing in service as such till 7.8.1989, i.e., the commencement of the amendment/extension of the Rules. Rule 6 thereof provided that appointment made under Rules, 1979 would be deemed to be under the relevant Service Rules or orders, if any. The U.P. Promotion by Selection in Consultation with the Public Service Commission (Procedure) Rules, 1970 (hereinafter called the Rules, 1970) were also applicable and the said Rules provided for promotion purely on merit after preparing the eligibility list by the Selection Committee as provided under the said Rules, 1970. The U.P. Regularization of ad hoc Promotions (On Post within the Purview of the Public Service Commission) Rules, 1988, hereinafter called the Rules, 1988 also provided for regularization of ad hoc promotions provided the officer concerned was promoted on ad hoc basis before 1st January, 1985 and was continuing on promotion post as such or on a higher post on the date of commencement of the said Rules, 1988, if he fulfilled the other conditions prescribed therein. The said Rules were given overriding effect. Similarly, U.P. Government Servants Seniority Rules, 1991 were also applicable which provided that seniority of an officer shall be determined from the date of substantive appointment. Ultimately the 'U.P. Rural Engineering Service Rules, 1993' were published on 10th June, 1993 and were subsequently amended on 28th January, 2000.
3. The present petitioners, except N.K. Tripathi had been appointed initially as Junior Engineers in the year 1972 on ad hoc basis and subsequently appointed as Junior Engineers with effect from 13.1.1981. They were promoted as Assistant Engineers on ad hoc basis on 13.8.2001, w.e.f, 17.5.1984 and were regularized vide order dated 17.6.1992 under the Rules, 1988. A seniority list was published on 19.2.1995 which was revised vide order dated 14.12.2001, after considering the representations. As some of the petitioners were pushed down in the seniority list these petitions were filed. The cases of the petitioners for regularization have not been considered on the post of Executive Engineers and so they have claimed the promotion on the post of Executive Engineers considering their cases for regularization as Assistant Engineers by giving them seniority reckoning the entire period they have served on ad hoc basis.
4. A Division Bench of this Court allowed the Writ Petition No. 9940 of 2001, Narendra Kumar Tripathi v. The Secretary, Minor Irrigation Department, vide judgment and order dated 13.2.2003, [Reported in (2003) 1 UPLBEC 674 (DB)], observing as under :
'In Direct Recruit Class II Engineering Officers Association v. State of Maharashtra : [1990]2SCR900 , it was held by the Supreme Court chat seniority has to be counted from the date of appointment and not according to the date of confirmation.
In our opinion this decision squarely applies to the facts of the present case. Admittedly the petitioner, was appointed as Assistant Engineer on 13.1.1983, when the Service Rules, 1993 had not come into force. Subsequently, he was confirmed also. It is settled law that seniority is to be counted from the date of continuous officiating on the post in view of the above decision of the Supreme Court.
Following the said decision, this writ petition is allowed. The impugned order dated 26.12.2000, is quashed. The respondents are directed to fix petitioner's seniority with effect from the date of his initial appointment on 13.1.1983. The seniority list shall be rectified accordingly.'
5. On the other hand, another Division Bench in Writ Petition No,. 2605 of 2002, Arjun Ravi Das v. Secretary, Minor Irrigation Department and Rural Engineering Service and Ors., decided on 27.2.2004 [Reported in (2004) 2 UPLBEC 1248 (DB)], held that as the ad hoc appointments had not been made in accordance with the Rules, the question of reckoning the period of ad hoc service for the purpose of determining their seniority or considering them for promotion could not arise.
6. In view of the conflicting views in the aforesaid two judgments of Division Benches of this Court this reference has been made to a Larger Bench.
7. We shall now briefly State the facts of each of the writ petitions in so far as they are relevant for the purposes of deciding the controversy.
8. In Writ Petition No. 10504 of 2004, the petitioner Farhat Hussain Azad was initially appointed on 7.9.1972 on purely ad hoc basis as Assistant Development Officer which post was subsequently redesignated as Junior Engineer. This was a Group 'C' post within the purview of the Public Service Commission. He was subsequently appointed as Assistant Development Officer (Junior Engineer) in Rural Engineering Services by means of the appointment order dated 13.1.1981. He was promoted to the post of Assistant Engineer on purely ad hoc by means of the order dated 13.8.2001, but he was given notional promotion w.e.f, 17.5.1984. A seniority list of Assistant Engineers was issued on 14.12.2001. This seniority list was challenged by the petitioner in Writ Petition No. 11538 of 2002 and the following principal reliefs were claimed :-
'(1) to issue a writ, order or direction in the nature of certiorari quashing the seniority list dated 14.12.2001;
(2) To issue a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the aforesaid seniority list.
(3) To issue a writ, order or direction in the nature of mandamus commanding the respondents to place the petitioner in the matter of seniority at appropriate place in adherence of U.P. Government Servant Seniority Rules, 1991.
(4) To issue any other suitable writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
(5) To award costs throughout to the petitioner.'
The reliefs claimed by the petitioner in the present petition are as follows :-
(i) to issue a writ, order or direction in the nature of mandamus commanding the respondents to assign petitioner's position in the seniority list adding his continuous services rendered on ad hoc basis;
(ii) to issue further a writ, order or direction in the nature of mandamus commanding the respondents to pass consequential order promoting the petitioner as an Executive Engineer in the Department of Rural Engineering Services.'
9. Thus in effect the principal relief claimed is the same as claimed in the earlier writ petition, namely, to place the petitioner correctly in the seniority list of Assistant Engineers.
10. Writ Petition No. 47741 of 2002, has been filed by Bankey Bihari Prasad Mirh. He was initially appointed as a Junior Engineer in the year 1972 in the Public Works Department and in the year 1980 he joined the Rural Engineering Services on deputation. He was promoted as an Assistant Engineer on purely ad hoc and stop-gap arrangement in the year 1981 against the vacancy of the quota of direct recruits. It was clearly provided in the appointment order that as soon as the directly recruited Engineers became available, the said ad hoc and stop gap arrangement would come to an end. He was regularized on the post of Assistant Engineer by the order dated 17.6.1992. A final seniority list of Assistant Engineers was prepared on 14.12.2001, wherein the cut-of date for the purposes of his seniority on the post of Assistant Engineer was taken as 17.6.1992. The petitioner did not challenge the order regularizing him as Assistant Engineer w.e.f, 17.6.1992 The present petition has been filed with the following principal reliefs :-
'(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned seniority list dated 14.12.2001;
(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to place the petitioner in the seniority list at an appropriate place;
(iii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to confirm/regularize the petitioner, on the post of Executive Engineer with effect from the date his juniors have been promoted.'
11. Likewise on similar facts, Sri Radhey Shyam Pandey filed Writ Petition No. 2603 of 2002, Sri Kedar Nath Verma and' Sri Bhushan Singh filed Writ Petition No. 4615 of 2002, Sri Pranav Kumar Kundu filed Writ Petition No. 13058 of 2004, Sri C.P. Singh filed Writ Petition No. 14043 of 2004, Sri Shyam Narain Pandey filed Writ Petition No. 1229 of 2004, Moti Kunwar filed Writ Petition No. 12228 of 2004 for identical releifs. However, what is important to note is that Pranav Kumar Kundu, C.P. Singh, Shyam Narain Pandey and Moti Kunwar, had earlier also filed Writ Petition No. 17379 of 2002, Writ Petition No. 50618 of 2002, Writ Petition No. 2613 of 2002 and Writ Petition No. 5020 of 2002, respectively for quashing the seniority list dated 14 12.2001 and placing them at the appropriate place in the seniority list. All these petitions were dismissed by a Division Bench of this Court along with several other writ, petitions by means of the judgment and order dated 27.2.2004.
12. Writ Petition No. 11542 of 2004 has been filed by N.K. Tripathi. The petitioner was appointed on a fixed salary on work charge basis as an Assistant Engineer by means of the order dated 18.1.1.983. He was then appointed as an Assistant Engineer on ad hoc basis by means of the order dated 12.6.1985 with the condition that the ad hoc appointment would continue till a duly selected candidate from the Public Service Commission joins. It was also provided that the appointment was liable to termination at any time by giving one month's salary in lieu of one month's notice and that he would not get any benefit of the aforesaid ad hoc service and neither would he get any seniority. His services were then regularized as an Assisiant Engineer under the Rules, 1979 by means of the notification dated 14.12.1989. A final seniority list was published on 14.12.2001. The contention sought to be raised by the petitioner is that the services rendered by him from 8.1.1983 till the regularization order dated 14.12.1989 was issued, should be counted for the purposes of seniority. This petition has, therefore, been filed with the following principal relief:-
'to issue a writ, order or direction in the nature of mandamus commanding the respondents to forthwith promote the petitioner to the post of Executive Engineer in accordance with the Rules, 1991 at least w.e.f, 24.6.2001 when juniors to the petitioners were granted promotion.'
13. Shri T.P. Singh, learned Senior Counsel appearing for the petitioners in all the writ petitions except in Writ Petition No. 4615 of 2002, Kedar Nath Verma and Anr. v. State, submitted that the cases of the petitioners were considered in 1992 for regularization under the Rules, 1988. They were correctly placed in the seniority list prepared in the year 1995. The said seniority list was subsequently changed in the year 2001 pushing down the petitioners by not giving them the benefit of the services rendered by them on ad hoc basis. The Division Bench judgment in the case of N.K Tripathi has been correctly decided. Thus, the petitions deserve to be allowed following the said judgment.
14. Sri U.N. Sharma, learned Senior Counsel appearing for the petitioners in Writ Petition No. 4615 of 2002, Kedar Nath Verma and Anr. v. State, while adopting the arguments advanced by Sri T.P. Singh, learned Senior Counsel further submitted that the seniority list published in the year 1995 had attained finality and there was, therefore, no occasion for the Government to prepare a fresh seniority list in the year 2001.
15. On the contrary, Shri Sudhir Agarwal, learned Additional Advocate General has submitted that the petitioners had been appointed on ad hoc basis as a stop gap arrangement without following any procedure prescribed by law and nor any consultation had been made with the Commission though provided for under the Rules. They could be considered for regularization only under Rules, 1979 and Rules, 1988 and therefore, the question of giving them substantive appointments with back dates did not arise. Thus, they cannot claim any benefit of ad hoc services rendered by them prior to their regularization made in the year 1992. Their seniority has rightly been fixed in seniority list of the year 2001. The case of N.K. Tripathi has not been decided correctly. As the provisions of the Rules or the propositions of law laid down in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra : [1990]2SCR900 , (hereinafter called as Direct Recruit Engineer's case), have not been considered at all, the judgment in the said case remained per in curium and cannot be followed. Special Leave Petition against the said judgment is also pending consideration before the Hon'ble Supreme Court. He, therefore, submitted that in view of the above, it cannot be held that there is any conflict in the aforesaid two judgments. The Division Bench of this Court had rightly decided the case of Arjun Ravi Das. He further submitted that not a single person, i.e., direct recruit, whose seniority is likely to be affected has been impleaded as a respondent in either of the writ petitions and therefore, the petitions were liable to be dismissed.
16. We have considered the rival submissions made by learned Counsel for the parties and have perused the record. The issue involved herein is no more res integra.
17. In SB. Patwardhan v. State of Maharashtra : [1977]3SCR775 , the Apex Court held that the period of continuous officiation in Government Service, after appointment of an employee by following the Rules applicable for substantive appointment has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of Government services depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16 of the Constitution. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the available eligible candidates and without following the Rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal, which would violate the equality clause. If the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the Rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority.
18. Same view has been reiterated in Baleshwar Dass and Ors. v. State of U.P. and Ors. : (1981)ILLJ140SC ; and Delhi Water Supply and Sewage Disposal Committee and Ors. v. R.K. Kashyap : (1989)ILLJ171SC .
19. In Narendra Chadha v. Union of India and Ors. : [1986]1SCR211 , the Hon'ble Supreme Court examined the case of officers promoted without following any procedure prescribed under the Rules but had continuously worked for 15-20 years on the posts without being reverted. The Court directed for counting the said officiating period for seniority observing that any other view would be arbitrary and violative of the mandate of Articles 14 and 16 of the Constitution. The Court observed as under :-
'......But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years, with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results...........where there is no dispute regarding the entry of the officers concerned into the same Grade.'
20. It is evident from the above observation that in that case, the direct recruit had not raised any dispute regarding the entry of the promotees and the Government was enclothed by the applicable relevant Service Rules to relax any of the service conditions and the promotees had worked for 15-20 years with due deliberations, though without consulting the Public Service Commission. The Court held that service conditions stood relaxed impliedly.
21. In S.G. Jaisinghani v. Union of India : [1967]65ITR34(SC) ; A.K. Subraman v. Union of India : (1975)ILLJ338SC ; Paramjit Singh Sandhu v. Ram Rakha : (1979)IILLJ6SC ; A. Janardhana v. Union of India : (1983)IILLJ175SC ; O.P. Singla and Anr. v. Union of India and Ors. : (1985)IILLJ309SC ; and G.S. Lamba and Ors. v. Union of India and Ors. : (1985)IILLJ282SC , the Apex Court held that if the quota Rule is applicable and for some reasons the quota could not be strictly adhered to and the persons so appointed continuously worked for a long time, those promotees cannot be pushed down in the seniority list on availability of the direct recruits.
22. In all these cases, it has been held that if a person has been promoted in excess of the permissible quota, his seniority would be reckoned with reference to the date when a vacancy became available for him and not on the basis of his continuous officiation as he is entitled to count his officiating experience only on a vacancy being available to him in accordance with the quota Rule, provided there exists a statutory provision in the Rules conferring power upon the Government to relax the service conditions.
23. Subsequently, in N.K. Chauhan v. State of Gujarat : [1977]1SCR1037 , the Hon'ble Supreme Court held that if it becomes non-feasible and impracticable for the State to fill up the requisite quota by direct recruits after making a serious effort to do so, it could promote suitable persons in case of compelling circumstances, as public interest does not warrant that improvement work should suffer on account of non-availability of suitable candidates for nomination. In such a case, if the Rules or executive instructions could not be carried out for good reasons only then persons working on promotional post were entitled to reckon the seniority by including the officiating period.
24. A Constitution Bench of the Supreme Court in the case of Direct Recruit Engineer's case, considered whether the ad hoc service followed by regular service could be counted for the purposes of seniority and in this context the Supreme Court observed in paragraph 44 as follows :-
'(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 regularization of his service in accordance with the Rules, the period of officiating service will be counted.'
25. Under Category (A) it has been expressly provided that where the initial appointment is not according to Rule but is only ad hoc and made as a stop-gap arrangement, the period of officiation on such post cannot be counted for the purpose of seniority.
26. In Keshav Chandra Joshi and Ors. v. Union of India and Ors. : AIR1991SC284 , the Hon'ble Supreme Court explained the scope of proposition 'B' in Direct Recruit Class II Engineers (supra), observing as under :-
'Propositions 'A' and 'B' cover different aspects of one situation. One must discern the difference critically. Proposition 'B' must, therefore, be read along with para 13 of the judgment wherein the ratio decidendi of Narendra Chadha was held to have considerable for. The latter postulated that if the initial appointment to a substantive post or vacancy was made deliberately, in disregard of the Rule and allowed the incumbent to continue on the post for well over 15 to 20 years, without reversion and still the date of regularization of the service in accordance with the Rules the period of officiating service has to be counted towards seniority. This Court in Narendra Chadha's case was cognizant of the fact that the Rules empower the Government to relax the Rule of appointment. Without reading paragraph 13 and Proposition 'B' and Chadha's ratio together the true import of the proposition would not be appreciated.........If the concerned Rules provide the procedure to fix inter se seniority between direct recruits and promotees, the seniority has to be determined in that manner.'
27. The Court also held that the appointment must be in substantive capacity and according to the Rules and within the quota of a substantive vacancy as there is a marked distinction between the appointment in substantive capacity and appointment to the substantive post. The officiation to post must be by an order of appointment and if the appointment on the post is validly made by the Competent Authority then only an employee becomes a member of the service. If the regularization of an employee is not in accordance with the statutory provisions, officiation will not be reckoned for the purpose of seniority or promotion.
28. In para 13 of the Direct Recruit Engineer's case, the Court had approved the ratio of SB. Palwardhan's (supra) that principle of determining the inter se seniority has to be consistent with the mandate of Articles 14 and 16 of the Constitution. An employee appointed on ad hoc basis on a stop-gap arrangement without following the procedure prescribed by law cannot claim the benefit of the period of officiation for the purpose of seniority or promotion.
29. In State of West Bengal and Ors. v. Aghore Nath Dey and Ors. : (1993)IILLJ475SC , the Apex Court elaborately explained the scope of the propositions (A) and (B) as set out in the aforementioned Direct Recruit case, observing as under :-
'There can be no doubt that these two conclusions have to be read harmoniously and conclusion (B) cannot 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............We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).
In our opinion, the conclusion (B) was added to cover 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 appointments is not made by following the procedure laid down by the 'Rules' and the latter expression 'till the regularization of his service in accordance with the Rules'. We read conclusion (B) and it must be so read to reconcil 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 regularization, 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 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...........'
30. Similar view has been reiterated in U.P. Secretariat U.D.A. Association v. State of U.P. and Ors. : (1997)ILLJ918SC .
31. It has, therefore, to be ascertained from the facts of each case as to whether the case of the petitioner, will fall under category (A) or (B) indicated by the Supreme Court in the Constitution Bench decision in the case of Direct Recruit Engineer's case.
32. The Supreme Court in the case of Masood Akhtar Khan v. State of M.P. : (1990)IILLJ449SC ; Excise Commissioner, Karnataka and Ors. v. V. Sreekanta, 1993 Supp. (3) SCC 53; Anuradha Bodi (Dr.) v. Municipal Corpn. of Delhi : (1999)ILLJ560SC ; Keshav Deo v. State of U.P. : AIR1999SC44 ; L. Chandrakishore Singh v. State of Manipur : AIR1999SC3616 ; T. Vijayan and Ors. v. Divisional Railway Manager and Ors., AIR 2000 SC 1766; State of Bihar v. Kameshwar Prasad Singh : AIR2000SC2306 ; and Santosh Kumar and Ors. v. G.R. Chawla and Ors. : AIR2003SC3304 , after considering the Constitution Bench decision in Direct Recruit Engineer's case, held 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.
33. In Syed Khalid Rizvi and Ors. v. Union of India and Ors., 1993 Supp (3) SCC 575, the Apex Court while resolving the dispute of seniority between promotees and direct recruits in Indian Police Service, held that as determination of seniority has been interlinked with the recruitment of the promotee officers to the Indian Police Service, to satisfactorily solve the problem, the Recruitment Rules, Promotion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together.
34. It was so held observing that seniority, though normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the IPS by promotion, which should be strictly complied with before becoming eligible for consideration for promotion, and are not re taxable. In absence of the Rules, ordinarily the length of service is taken into account.
35. Similar view has been reiterated in A.K. Bhatnagar and Ors. v. Union of India and Ors. : (1995)IIILLJ287SC ; Indian Administrative Service (SCS), Association U.P. and Ors. v. Union of India and Ors., 1993 Supp (1) SCC 730; and Prafulla Kumar Das and Ors. v. State of Orissa and Ors. : AIR2003SC4506 , observing that seniority is an incidence of service and when Rules prescribe the method of computation, it is squarely governed by such Rules. No one has vested right to promotion or Rules.
36. In Dr. M.A. Haque and Ors. v. Union of India and Ors., : (1993)ILLJ1139SC , the Supreme Court held that expression used by the Constitution Bench in Direct Recruit Engineer's case, means 'the Rules of recruitment and not the special procedure laid down by the Court'. Therefore, the Apex Court emphasized that a case, has to be examined giving paramount importance to the statutory Rules. If the appointments had been made without following the procedure prescribed under the statutory Rules, the question of reckoning the officiating period for determining the seniority will not arise.
37. In Md. Israils and Ors. v. State of West Bengal and Ors. : [2002]1SCR13 , the Hon'ble Apex Court reiterated the same view and while deciding the case, reliance had also been placed upon the earlier judgment in Suraj Prakash Gupta v. State of J&K; : AIR2000SC2386 ; and M.K. Shanmugam v. Union of India, AIR 2000 SC 2704, wherein it has been held that the particular statutory Rules governing the services of an employee have to be kept in mind and in case the promotion was de hors the said Rules, the question of reckoning the period of officiation for the purpose of seniority and promotion would not arise. The Court must also examine as to whether the authority had a power to grant relaxation under the said Rules and if relaxation is so granted, it should be in accordance with the said Rules.
38. In M. Amanullah Khan v. Government of India and Ors. : (2004)7SCC586 , the Hon'ble Apex Court placing reliance upon its earlier judgment in R.R.S. Chauhan v. Union of India, 1995 Supp (3) SCC 109; and Syed Khalid Rizvi (supra), held that if the officiation in a cadre post is fortuitous in nature, the period of officiation cannot be taken into account for the purpose of fixing the seniority. The Apex Court held that where an appointment is offered to a person as a stop gap-arrangement for non-availability of a regularly selected person to man temporary vacancies in a cadre post in deviation of the Rules, though in compelling circumstances, the benefit of the officiating period cannot be claimed.
39. In P.N. Premchandran v. State of Kerala and Ors., : AIR2004SC255 , the Apex Court held that if there is a lapse on the part of the employer-authority in making the regular promotions, though ad hoc promotion had been given earlier, the benefit of officiating period is to be given by making the promotions with a back date unless the officer can be blamed for the delay.
40. Reference may also be made to the decisions of the Supreme Court in the case of Union of India v. Joginder Sharma, reported in : (2003)ILLJ501SC , and in the case of State of Mizoram and Anr. v. Mizoram Engineering Service Association and Anr., reported in : AIR2004SC3644 , wherein the Supreme Court has clearly held that even in the absence of statutory Rules the ad hoc appointments have to be made in consonance with the provisions of Articles 14 and 16 of the Constitution of India.
41. Thus, the law stands crystallised that a person appointed on ad hoc basis on a post de hors the Rules or without following any procedure prescribed by law, cannot claim the benefit of reckoning the period of service rendered by him as such for the purpose of seniority or promotion. The case of an individual person claiming such a relief is to be examined in the light of the propositions 'A' and 'B' propounded by the Hon'ble Apex Court in Direct Recruit Engineers' case, reading it along with the explanation given in paragraph 13 of the said judgment, as also explained subsequently by the Hon'ble Apex Court time and again in Keshav Chandra Joshi and Ors. (supra) and Aghore Nath Dey and Ors. (supra). The appointment should be made after considering the suitability of all eligible candidates in strict compliance of the statutory Rules. A minor deficiency in following the procedure prescribed under the Rules, may be ignored but, if the appointment is to be made in consultation with the Commission, such a deficiency cannot be ignored as the appointment itself would be de hors the Rules. Where the quota Rule could not be complied with for some compelling circumstances and appointments have been made with due deliberation and appointees continue for a very long period without any interruption, benefit of such a period is permissible, provided the statutory Rules applicable in the service confer the power upon the Government to relax the service conditions.
42. Reference to various Rules governing the aforesaid matters is also required.
43. The Rural Engineering Services Department was constituted on 1.7.1972, in view of the increase of Engineering work in the rural development. No separate Rules were framed but the recruitments on the post of Assistant Development Officer (subsequently redesignated as Junior Engineer) and Assistant Engineers were governed by the General Rules applicable to other Government Officers of similar ranks and pay scale. The posts of Assistant Development Officers (subsequently redesignated as Junior Engineer) and Assistant Engineers were within the purview of the U.P. Public Service Commission. The Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954 (hereinafter referred to as 'the 1954 Regulations') deals with the services and posts in connection with the affairs of the State of Uttar Pradesh, other than services and posts to which appointments are made from among other members of All India Services or are regulated by the Rules and orders applicable to such services. Regulation 3 deals with the various matters where it shall not be necessary for the Commission to be consulted on matters relating to methods of recruitment. The posts of Assistant Engineers are not exempted and therefore, consultation of the Commission was absolutely necessary in so far as the recruitment was concerned to the post of Assistant Engineer. The Government, however, from time to time issued various Government Orders, on 7.12.1979, 3.3.1981 and 1.12.1983 to fill the vacuum in so far as the quota or qualification were concerned.
44. Rule 2 of Rules 1970, provides that the Rules shall apply to all services and posts in connection with the affairs of Uttar Pradesh to which recruitment by promotion is required to be made by selection in consultation with the Uttar Pradesh Public Service Commission otherwise than as a result of a Competitive Examination while Rule 3 provides that the provisions of these Rules shall have effect notwithstanding anything inconsistent therewith in any Service Rules in force immediately before the commencement of these Rules. Rule 5 provides the criteria for promotion. Part 3 of the Rules deals with the procedure for promotion where criteria is merit while Part 4 deals with the procedure for promotion where the criteria is seniority subject to the rejection of the unfit. A detailed procedure has been provided for promotion where the criteria is the merit in Rules 7 to 18 contained in Part 3 of the Rules. An eligibility list has to be prepared by the Appointing Authority, which is to be forwarded to the Commission. A Selection Committee is then constituted under Rule 11 consisting of the Chairman or member representing the Commission, the Appointing Authority and a Senior Officer of that department or any other department nominated by the Government. The Selection Committee then prepares two lists in order of merit. These lists are called list 'A' and list 'B'. While list 'A' contains the names of the candidates recommended for substantive appointment against the permanent vacancies, list 'B' contains the names of the candidates recommended for temporary or officiating appointments. Under Rule 14 the Commission considers the recommendations of the Selection Committee and thereafter sends the lists to the Appointing Authority. Rule 17 deals with the appointment from list 'A' and Rule 18 deals with appointment from list 'B'.
45. Rules 4 and 7 of Rules, 1979 dealing with regularization of ad hoc appointment and seniority provide that an ad hoc employee appointed by direct recruitment before 1st January, 1977 and continuing in service on the commencement of the said Rules, if possessed the requisite qualification and eligibility at the time of initial appointment for the post and had completed three years continuous service would be considered for regular appointment against permanent or temporary vacancy as may be available after assessing his suitability, following the reservation policy framed by the State. His seniority shall be considered only from the date of order of substantive appointment after selection in accordance with the said Rules. The said Rule 7 reads as under :-
'Seniority.-(1) A person appointed under these Rules shall be entitled to seniority only from the date of the order of appointment after selection in accordance with these Rules and shall, in all case, be placed below the persons appointed in accordance with the relevant Service Rules or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these Rules.
46. Analogous provisions to the said Rules, 1979 exists in Rules 4 and 7 of the Rules, 1988 dealing with the regularization and seniority only by shifting the date from 1st January, 1977 to 1st January, 1988. Rule 8 of the Seniority Rules, 1991 provides that if the appointments are made by promotion as well as by direct recruitment, the seniority of officers so appointed shall be subject to the provisions of the said Rules. In exceptional circumstances, seniority to an officer may be given from the back date, i.e., w.e.f, the date on which he has been substantively appointed. In other cases, the substantive appointment shall be deemed to have been made from the date of issuance of the order.
47. Rule 4(h) of the Rules, 1991 defines substantive appointment as it means 'an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the Service Rules relating to that service'.
48. Thus, in view of the above, appointment means appointment made under the Rules for regularization and seniority is to be reckoned from the' date of substantive appointment under all above referred to Rules.
49. The judgment in Narendra Kumar Tripathi (supra) was delivered without considering the statutory Rules applicable to the case and only a mere observation was made that the case was fully covered by the Constitution Bench decision of the Hon'ble Supreme Court in Direct Recruit Engineer's case, without even stating as to under what circumstances it was covered by the said judgment. However, in the case of Arjun Ravi Das (supra), all the Rules applicable to the case were considered and it was held in the said case, that the case of the petitioners did not fall either in propositions 'A' or 'B' of the said judgment. Since the judgment in N.K. Tripathi (supra) was rendered without giving any factual position or making reference to the statutory Rules, it has to be held to be per incurium and cannot be held to have any binding force in law.
50. The concept of 'per in curium' has been considered by the Apex Court time and again explaining that the expression means through inadvertence or a point of law is not consciously determined. If an issue is neither raised, nor argued, a decision by the Court: after pondering over the issue in depth would not be precedent binding on the Courts. Per incurium are decisions given in ignorance or forgetfulness of some statutory provisions or where the Court omits to consider a binding precedent of the same Court or the Superior Court rendered on the same issue or where Court presumes something contrary to the facts of the case. [Vide Mamleshwar Prasad and Anr. v. Kanahaiya Lal (Dead) : [1975]3SCR834 ; Rajpur Ruda Meha and Ors. v. State of Gujarat : 1980CriLJ1246 ; A.R. Antule v. R.S. Nayak : 1988CriLJ1661 ; Municipal Corporation of Delhi v. Gurnam Kaur : AIR1989SC38 ; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. : (1990)IILLJ70SC ; State of West Bengal v. Synthetics and Chemicals Ltd. (1991) 1 SCC 139; Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. and Anr. v. Employees' Union and Anr., 1994 Supp (3) SCC 385; Pawan Alloys and Casting Pvt. Ltd., Meerut v. U.P. State Electricity Board and Ors. : AIR1997SC3910 ; Ram Gopal Baheti v. Girdharilal Soni and Ors. : (1999)3SCC112 ; Sarnam Singh v. Dy. Director of Consolidation and Ors. : (1999)5SCC638 ; Government of Andhra Pradesh v. B. Satyanarayana Rao, AIR 2000 SC 1729; Arnit Das v. State of Bihar : 2000CriLJ2971 ; Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. : [2001]3SCR479 ; A-one Granites v. State of U.P. and Ors. : [2001]1SCR1085 ; Suganthi Suresh Kumar v. Jagdeeshan : 2002CriLJ1003 ; Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. : [2002]2SCR661 ; S. Shanmugavel Nadar v. State of T.N. and Anr. : [2003]263ITR658(SC) ; State of Bihar v. Kalika Kuer Kalika Singh and Ors. : [2003]3SCR919 ; and Manda Jaganath v. K.S. Rathnam and Ors. : AIR2004SC3600 .
51. In B. Shyama Rao v. Union Territory of Pondicherry and Ors. : [1967]2SCR650 , the Constitution Bench of the Supreme Court observed as under:-
'It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein.'
52. in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. : 1993(41)ECC326 , the Apex Court followed the aforesaid judgment in B. Shyama Rao and held as under :-
'Any declaration or conclusion arrived without application of mind or proceeded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent......A conclusion without reference to relevant provision of law is weaker than even casual observation.'
53. Similar view has been reiterated in Divisional Controller, KSRTC v. Mahadeva Shetty and Anr. : AIR2003SC4172 , observing that casual expressions in a judgment carry no weight at all, nor every passing remark, however eminent can be treated as an ex-cathedra statement having the weight of authority.
54. In view of the above, the said judgment in N.K. Tripathi (supra) is liable to be declared as a judgment per incurium, as it was decided in complete inadvertence without even making any reference to the facts or the statutory Rules, applicable in the case. On the other hand, the judgment in Arjun Ravi Das (supra), is a well reasoned judgment based on the interpretation of the statutory provisions applicable therein. In such a fact situation it cannot be held that there is a conflict in the two judgments of this Court. The law laid down in Arjun Ravi Das (supra) is in consonance with the judgments rendered by the Hon'ble Apex Court from time to time.
55. We could have stopped here but a request has been made by the learned Counsel for the parties that we may decide the petitions since no useful purpose would be sent by sending the matters back to the Division Bench. We have, therefore, proceeded to decide the petitions.
56. The present cases have to be examined in the light of the propositions of law enumerated above. It would be found that in all the cases except the case of N.K. Tripathi, the petitioners, had been initially appointed as Assistant Development Officers (subsequently redesignated as Junior Engineers) in the year 1972. The petitioners were then promoted as Junior Engineers purely on ad hoc basis when all the petitioners except Farhat Hussain Azad were regularized as Assistant Engineers by means of the order dated 17.6.1992. It was specifically provided in the said order that the cut-of date was 17.6.1992. A seniority list of Assistant Engineers was then published on 4.2.1995. It was clearly provided that it was subject to the decision of the High Court in Writ Petition No. 5585 of 1982, filed by N.K. Agarwal. After the decision of the Court in the aforesaid petition a seniority list dated 14.12.2001 of the Assistant Engineers was published. This list was challenged by some of the present petitioners, namely, C.P. Singh, Moti Kunwar, Shyam Narain Pandey and Pranav Kumar Kundu by filing writ petitions which were ultimately dismissed by this Court by means of the judgment and order dated 27.2.2004. Shri Farhat Hussain Azad filed the petition, though he is also one of the petitioners in Writ Petition No. 11538 of 2002, which is still pending. The aforesaid persons have again raised the same issues by filing the present petitions by claiming the same reliefs though differently worded. The case of N.K. Tripathi is different inasmuch as he was initially appointed as an Assistant Engineer on work charge basis on a fixed salary by means of the order dated 18.1.1983 and then he was appointed as an Assistant Engineer on ad hoc basis by means of the order dated 12.6.1985. However, it was clearly provided in the said order that his ad hoc services could be terminated at any time and that the period of services rendered on ad hoc basis would not be counted in case he was ultimately regularized. He was subsequently regularized by means of the order dated 14.12.1989. In the petition he has claimed the relief for fixation of his seniority by adding the aforesaid ad hoc services also.
57. Sri T.P. Singh learned Senior Counsel for the petitioners in order to make out a case that the petitioners had been promoted as ad hoc Assistant Engineers in accordance with the procedure prescribed, submitted that Government Orders dated 7.12.1979, 3.3.1981, 24.5.1980 and 1.12.1983 had been issued providing for the inter-se quota between the direct recruits and promotees and other procedures. According to him, the petitioners had been appointed on ad hoc basis in accordance with these Government Orders and therefore, it cannot be contended that the ad hoc promotions had been made de hors the Rules. Sri Sudheer Agarwal, learned Senior Counsel appearing for the State, however, submitted that the aforesaid Government Orders did not prescribe the mode of appointment at all and had only been issued to fill in the vacuum existing in the relevant Rules and the ad hoc promotions could only have been made in accordance with the 1954 Regulations and the 1970 Promotion Rules. According to him since the ad hoc promotion to the post of Assistant Engineer had not been made in accordance with the aforesaid Regulations and Rules, the period of officiation on ad hoc basis cannot be counted. In a similar fact-situation the Apex Court in Sudama Singh v. Nath Saran Singh and Ors. : [1988]1SCR1049 , held that appointment prior to regularization, i.e., on ad hoc basis has no bearing on the issue of seniority.
58. We have carefully considered the aforesaid submissions advanced by the learned Counsel for the parties. A perusal of the Government Orders dated 7.12.1979 and 3.3.1981 indicate that only the quota for promotion of Junior Engineers to the post of Assistant Engineer had been provided whereas the Government Order dated 1.12.1983 provided for the qualification/experience require for promotion. The petitioners had not been promoted to the post of Assistant Engineer on ad hoc basis in accordance with the 1954 Regulations or the 1970 Promotion Rules and indeed the learned Counsel for the petitioners have also not been able to point out anything which may suggest that the ad hoc promotions had been made in accordance with the aforesaid Rules or Regulations. There is nothing on the record to indicate that the ad hoc appointment had been made in consultation with the Commission on the basis of the recommendation of a Selection Committee as contemplated under the 1970 Promotion Rules. All that has been submitted by the learned Counsel for the petitioners, is that though the departmental Selection Committee had made recommendations for ad hoc promotion of the petitioners, they cannot be blamed for want of approval by the Commission. Thus, neither was the constitution of the Selection Committee in accordance with the aforesaid Rules and nor was the commission consulted. Such being the position, the promotion of the petitioners, as ad hoc Assistant Engineer was clearly de hors the Rules and in view of the proposition of law laid down in the aforesaid mentioned cases, such period of officiation cannot be considered for the purposes of seniority. The submissions advanced by the learned Counsel for the petitioners, therefore, cannot be accepted.
59. Sri T.P. Singh, learned Senior Counsel for the petitioners then placed reliance upon the Notification dated 22.12.1992 and submitted that the same provided the date of initial appointments of the promotees and the year of the vacancy against which they were regularized and therefore, according to him the date of regularization should be taken to be the year against which the vacancy had occurred. On the other hand Sri Sudheer Agarwal learned Senior Counsel for the State contended that by the order dated 17.6.1992 the petitioners had been regularized as Assistant Engineer's w.e.f, the date of the order and therefore, the petitioners cannot contend that their date of regularization can be earlier to that date. The order dated 17.6.1992 had not been challenged by the petitioners at all and therefore, at such a belated stage they cannot contend that their seniority should be counted from any earlier date. He further submitted that the Notification dated 22.12.1992, merely indicated the existence of a vacancy and under no circumstances it can be inferred that the persons had been regularized from the year the vacancy had occurred.
60. We have carefully perused the Notification dated 22.12.1992. We, however, express our inability to accept the submission advanced by the learned Senior Counsel for the petitioners since by mere mention of the year in which vacancy existed cannot lead to the inference that the services of the petitioners had been regularized w.e.f, that year. We also find that the order dated 17.6.1992 regularizing the services of the petitioners w.e.f, the date of the order had not been challenged by the petitioners.
61. Sri T.P. Singh, learned Senior Counsel for the petitioners further contended that on 4.2.1995, the final seniority list was published and therefore, there was no occasion for the Government to prepare a fresh seniority list dated 14.12.2001. These arguments were also reiterated by Sri U.N. Sharma, learned Senior Counsel appearing for Sri Kedar Nath Verma, and Sri Bhushan Singh in Writ Petition No. 4615 of 2002. Sri Sudheer Agarwal, learned Senior Counsel appearing for the State, however, submitted that the covering letter annexed to the seniority list dated 4.2.1995 which had not been annexed by the petitioners in the writ petition clearly shows that it was subject to many factors including the fact that it was subject to the decision given by the Court in the writ petition filed by Sri N.K. Agarwal and when the decision in the case of N.K. Agarwal was given, it was obligatory on the part of the Government to have prepared a fresh seniority list which it did by publishing the seniority list dated 14.12.2001.
62. A perusal of the covering letter annexed to the seniority list dated 4.2,1995 clearly indicates that the seniority list was subject to the decision given by the Court in the writ petition filed by N.K. Agarwal. Thus, when the judgment was delivered in the said case, the exercise for preparation of a fresh seniority list as per the decision had to be undertaken.. In this view of the matter we are unable to accept the submission advanced by the learned Counsel for the petitioners that there was no occasion to prepare a seniority list dated 14.12.2001.
63. It may also be noticed that the Supreme Court in the case of Pradeep Kumar Trivedi v. State of U.P. and Ors. (Civil Appeal No. 5839 of 1999), with (Civil Appeal No. 5840 of 1999), decided on 23.2.2002 considered the matter relating to the seniority list of Assistant Engineers of the year 2001 of this department also but remitted the matter to be decided by the High Court.
64. It was then sought to be contended by the learned Senior Counsel appearing for the petitioners that the seniority list of the year 1995 could have been alterated only in respect of the parties in the writ petition filed by N.K. Agarwal but the State under the garb of the aforesaid judgment could not have alterated the entire seniority list.
65. In our opinion once the criteria for fixation of the seniority was alterated, the seniority list was required to be prepared afresh and the alterations cannot be restricted to the case of the parties alone. This is what has been done by the State after publishing a tentative seniority list and inviting objections from the concerned persons on 1.9.2001. Thus there is no merit in this contention also.
66. The case of N.K. Tripathi is slightly different inasmuch as he had not been promoted to the post of Assistant Engineer on ad hoc basis from the post of Junior Engineer but had directly been appointed on ad hoc basis as an Assistant Engineer by means of the order dated 12.6.1985. It was, however, specifically mentioned that he would not get the benefit of the aforesaid ad hoc services rendered by him in case he was ultimately regularized. For him the Regularization Rules, 1979 were applicable. His contention, however, is that he should be regularized w.e.f, 8.1.1983 when he was initially appointed on work charge basis as an Assistant Engineer. This contention also cannot be accepted because of the fact that his appointment on ad hoc basis as Assistant Engineer is also de hors the Rules, apart from the fact that the order appointing him on ad hoc basis as Assistant Engineer specifically provided that the period of service rendered by him on ad hoc basis cannot be counted for the purposes of seniority.
67. Thus, none of the contentions advanced by the learned Counsel for the petitioners have any force and the petitions are, therefore, liable to be dismissed. We entirely agree with the reasoning given by the Division Bench in the case of Arjun Ravi Das (supra).
68. What is, however, disturbing us is the fact that some of the petitioners had earlier filed writ petitions for quashing the seniority list dated 14.12.2001 and even though these petitions had been dismissed by a detailed judgment and order dated 27.2.2004, the said petitioners have again filed these writ petitions claiming in substance the same releifs, i.e., re-determination of the seniority as referred to above herein.
69. Even if it is accepted that these reliefs had not been prayed for earlier as sought now, as contended by the learned Counsel for the petitioners, we are of the view that petitions are barred by the principles of constructive res judicata enshrined in Order II, Rule 2 of the Code of Civil Procedure (hereinafter called 'CPC'). The said Rule provides that suit must include the whole claim. If a relief which could have been claimed is not claimed, party cannot claim it in a subsequent suit. (Mohd. Khalil Khan v. Mahbub Ali Mian .
70. The Rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. One great criterion, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will maintain both actions.
71. A Constitution Bench of Hon'ble Supreme Court in Gurubux Singh v. Bhooralal : [1964]7SCR831 , held that even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order I, Rule 2 of the Code of Civil Procedure. In Order II, Rule 2 CPC, as has been explained, in unambiguous and crystal clear language by the Hon'ble Supreme Court in D. Cawasji and Co. v. State of Mysore : 1978(2)ELT154(SC) ; Commissioner of Income Tax v. T.P. Kumaran : (1997)ILLJ117SC ; Union of India and Ors. v. Punnilal and Ors. : (1997)IILLJ53SC ; Dilip Singh v. Mehar Singh Rathee and Ors. : (2004)7SCC650 ; and Executive Engineer ZP Engineering Division and Anr. v. Digambara Rao and Ors. : (2005)ILLJ1SC .
72. It is settled proposition of law that what cannot be done 'per directum is not permissible to be done per obliquum' meaning thereby, whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of 'quando aliquid prohibetur, prohibetur at omne per quod devenitur ad ilud'.
73. In Jagir Singh v. Ranbir Singh : 1979CriLJ318 , the Apex Court has observed that an authority cannot be permitted to evade a law by 'shift or contrivance'. While deciding the said case, the Hon'ble Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B 7 C 635, wherein it has been observed as under :
'To carry out effectually the object of a statute, it must be considered as to defeat all attempts to do or avoid doing in an indirect or circuitous manner that; which it has prohibited or enjoined.'
74. Law prohibits to do something indirectly which is prohibited to be done directly. [Vide Commissioner of Central Excise v. ACER India Ltd. : 2004(172)ELT289(SC) . Similar view has been reiterated by the Apex Court in M.C. Mehta v. Kamal Nath and Ors. AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of Article 142 of the Constitution, which empowers the Court to pass any order in a case in order to do 'complete justice.'
75. In view of the above, it is not permissible to seek the relief indirectly, for which earlier petitions have already been dismissed/pending.
76. What is also to be noticed is that in none of the petitions, the persons who are likely to be affected in case the seniority list is disturbed have been impleaded as respondents. Since such persons were necessary parties the petitions are liable to be dismissed on this ground alone. [Vide Prabodh Verma v. State of U.P. : [1985]1SCR216 ; Ishar Singh v. Kuldeep Singh, 1995 (Supp) 1 SCC 179; Bhagwati and Ors. v. Subordinate Service Selection Board, Haryana and Ors., 1995 (Supp) 2 SCC 663; Central Bank of India v. S. Satyam and Ors., (1996) 6 SCC 419; J. Jose Dhanapaul v. S. Thomas and Ors. : (1996)IILLJ646SC ; Arun Tewari and Ors. v. Zila Manasavi Shikshak Sangh and Ors., AIR 1998 SC 331; Azar Hasan and Ors. v. District Judge, Saharanpur : AIR1998SC2960 ; Ram Swarup and Ors. v. S.N. Maira and Ors., (1991) 1 SCC 738; Chandra Kishore Singh v. State of Manipur and Ors. : AIR1999SC3616 ; Mohd. Riazul Usman Gani and Ors. v. District and Sessions Judge, Nagpur and Ors. : [2000]1SCR771 ; Nirmala Anand v. Advent Corporation (P) Ltd. and Ors. : AIR2002SC2290 and M.P. Rajya Sahkari Bank Maryadit v. Indian Coffee Workers' Co-operative Society Ltd. and Ors. : AIR2002SC3055 ; and Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors., (2004) 2 SCC 1976].
77. Thus, in view of the above, we reach the inescapable conclusion that none of the petitioners, is entitled to reckon the period rendered by them on ad hoc basis for the purpose of seniority or promotion. Some of the petitioners did not hesitate abusing the process of the Court as their petitions filed earlier substantially for the same relief stood dismissed. None of the persons who may be adversely affected has been impleaded as a party. Petitions are devoid of any merit.
78. In view of the above, petitions stand dismissed.