Garg, J.
1. The above writ petitions are being decided by this common order as in both the writ petitions facts are similar in nature and the questions raised are also similar.
Facts of Writ Petition No. 1164/92
2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 25.2.92 with a prayer that by an appropriate writ, order or direction the orders dtd. 5.10.91 (Annex.6) and 7.10.91 (Annex.5) whereby respondents No. 4 and 5 have been promoted be quashed petitioner for promotion to the post of Executive Officer, Municipal Board Gr. II in the post falling vacant after December, 1976 and for the post of Executive Officer, Gr. I, Municipal Board on the post falling vacant after December, 1981 and the State Government may be directed to allow the petitioner the emoluments of the post of Executive Officer Gr. II, Municipal Board with effect from 25.4.81 and any other appropriate writ, order or direction be issued the may be deemed expedient for the ends of justice.
3. It arises in the following circumstances:
i) The petitioner was appointed as Executive Officer Class III, Municipal Board vide order dtd. 9.8.71 (Annex.1) passed by the Director, Local Bodies in exercise of powers conferred under Rule 27 of the Rajaslhan Municipalities service Rules, 1963 (hereinafter referred to as the Rules of 1963).
ii) The Rules of 1963 came to be amended by the State Government vide notification No. F.10)(1) LSG/56 dated 10.12.76 published in the Rajasthan gazette dtd. 23.12.76 published in the Rajasthan gazette dtd. 23.12.76. Through that amendment, Rule 7 was amended and proviso (v) to Rule 7 was introduced and same reads as under:-
'(v) that the names of existing Executive Officers Class III appointed by direct recruitment vide Rule 2 7 temporarily or in officiating capacity shall be referred to the Commission to adjudge their suitability according to the qualifications etc. prescribed at the time of their appointments and their appointments shall be terminated immediately in case they are not adjudged suitable.'
iii) Thus, proviso (v) to Rule 7 of the Rules of 1963 provides that theservice of the persons who were not adjudged suitable, their serviceswere to be terminated. .
iv) The proviso (v) to Rule 7 of the Rules of 1963 necessarily implied that the names of the persons who were required to be adjudged under the said proviso by the Rajasthan Public service Commission should be sent immediately by the Government to the Rajasthan Public Service Commission.
v) The petitioner was referred to the Rajasthan Public Service Commission in the year 1980. The Commission, however after doing the needful adjudged the petitioner suitable. Thereupon the respondent No. 2 passed an office order No. F.18/A/III/DLBk/69/II/487 dtd.13.2.81 (Annex.2) ordering that since the persons named therein including the petitioner have been adjudged suitable by the Rajasthan Public Service Commission, they are confirmed with effect from the date of their being adjudged suitable i.e. 20.12.80.
NOTE: From perusing the writ petition, mainly this order dtd. 13.2.81 (Annex.2) has been challenged, though in prayer this aspect is missing.
vi) By order dtd. 13.2.81 (Annex.2), the Government confirmed the petitioner on the post of Executive Officer Grade III with effect from 20.12.80.
vii) The case of the petitioner is that even in the case where the initialappointment is not may by following procedure laid down by theRules, but the appointees continued in the post uninterruptedly tillregularization of his service in accordance with the Rules, the periodof officiating service is to be counted. Hence, service of the presentpetitioner should be counted from the initial appointment i.e. from9.8.71.
viii) The further case of the petitioner is that in the alternative when the Rule 7 of the Rules of 1963 was amended with effect from 23.12.76, therefore, he should have been confirmed from that date and for that he has placed reliance on Rule 29 of the Rules of 1963 also. Hence the present writ petition with the above prayer.
ix) The order Annex.2 dt. 13.2.81 has also been challenged by the petitioner on the ground that the Rajasthan Public Service Commission in its order dt. 20.12.80 specifically mentioned that the petitioner was found suitable with effect from 24.4.71. From this point of view also the order dt. 13.2.81 (Annex.2) is wrong and cannot be sustained.
4. Reply to the writ petition was also field by the respondents and in the reply it has been submitted that since initial appointment of the petitioner was on temporary basis under Rule 27 of the Rules of 1963 and since after amendment in Rule 7 of the Rules of 1963 and since after amendment in Rule 7 of the Rules of 1963 in the year 1976, the case of the petitioner was to be referred to the Commission for adjudging his suitability and the Commission for adjudging his suitability and the Commission vide order dtd.20.12.80 found him suitable and therefore, the petitioner was confirmed with effect from 20.12.80 and, therefore, seniority which was assigned to the petitioner was according to Rules. Hence, the writ petition filed by the petitioner be dismissed.
5. The learned counsel for the petitioner has raised following submissions:
i) That the petitioner should be assigned seniority from the date when he was initially appointed i.e. 9.8.71 through Annex.1 because the appointment was described as officiating one and it was made against the vacant post and further more, it was made under Rule 27 of the Rules of 1963, therefore, the petitioner should not be denied the benefit of his officiating service which he rendered.
ii) That giving seniority to the petitioner from the date when he was regularized in service after he was found suitable by the RPSC with effect from 20.12.80 is wrong and contrary to law.
iii) That in the alternative, there was no jurisdiction for not effecting confirmation of the petitioner with effect from the date of commencement of the amendment made in Rule 7 of the Rules of 1963 with effect from 23.12.76 as with effect from that date, his case was liable to be immediately referred to the Commission,
6. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone though the material available on record.
7. There is no dispute on the point that through order Annex.1 dtd. 9.8.71 the petitioner was appointed as Executive Officer Grade III on officiating basis and further that appointment was for a period of six months and till the persons duly recruited from Rajasthan Public Service Commission were made available. Sub-clause 2 of Rule 27 of the Rules of 1963 reads as under:-
'No appointment made under Sub-rule (1) shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur.'
8. Thus Rule 27 of the Rules of 1963 clearly provides that such an appointment which is officiating in nature shall not be continued beyond a period of one year without referring it to the Commission for their concurrence and if that concurrence was not obtained, it shall be terminated immediately one their refusal to concur.
9. In the present case, concurrence of RPSC was obtained in the year 1980 with effect from 20.12.80 and apart from this, the petitioner was continued in service even after expiry of period of one year without further extension of period of his service and without any concurrence of the Commission upto 20.12.80. Thus, appointment of the petitioner upto 20.12.80 cannot be termed as according to Rules of 1963 and specially after expiry of period of one year, the appointment of the petitioner in all respects would be against the officiating appointment is only one year and after expiry of one year, the appointment of such person becomes irregular one and thus it can be concluded that appointment of the petitioner after expiry of one year from the date of initial appointment becomes irregular and it became regular only when he was found suitable by the Rajasthan Public Service Commission with effect from 20.12.80.
10. Apart from this, there should be no dispute in saying that the petitioner was regularly appointed with effect from 20.12.80 through Annex.2 dt.13.2.81 after due selection process. The argument of the learned counsel for the petitioner that since Rajasthan Public Service Commission in the order dt, 20.12.80 has mentioned that the petitioner was found suitable with effect from 24.4.71 is not at all tenable as the duty of Rajasthan Public service Commission was only to adjudge the suitability of the petitioner and it was prerogative of the Govt. to take action on the recommendations of Rajasthan Public Service Commission and thus, on the basis of that recommendations, the order dt.13.2.81 Annex.2 was passed by the Govt. in which it was clearly mentioned that the petitioner was regularized in service with effect from 20.12.80.
11. Now the question for determination is whether seniority of the petitioner should be counted from the date when he was initially appointed or from the date when amendment in Rule 7 of the Rules of 1963 came into force or from the date when he was regularly appointed i.e. 20.12.80.
12. Thus question has to be answered keeping in mind that the initial appointment of the petitioner after expiry of one year was not found regular one or in accordance with the Rules.
13. In my considered opinion, where initial appointment is only adhoc, made as stop gap arrangement and not according to the Rules, the period, of officiating services would not be counted. Therefore, in the present case, since the initial appointment of the petitioner was only for a period of 6 months and at the most, since appointment was made under Rule 27 of the Rule of 1963, the period of such appointment could be one year maximum and thus, appointment of the petitioner upto 20.12.80 cannot be said to be according to the Rules of 1963. When this being the position, the argument that since the petitioner continued on the post uninterruptedly till regularization of his service, therefore, period of officiating service should be counted is not tenable.
14. Law of Hon'ble Supreme Court if initial appointment is not made according to rules.
(A) In Masood Akhtar Khan and Ors. v. State of Madhya Pradesh and Ors. , 1990 (4) SCC 24, the Hon'ble Supreme Court held that seniority should be counted not from the date of initial stop gap appointment but from the date of regular selection under the Rules. It was further held that if the initial appointment is not made according to the Rule's, subsequent regularisation of service of an employee does not entitle him to the benefit of intervening service for seniority.
(B) In Excise Commissioner, Karnataka and Anr. v. V. Sreekanta , AIR 1993 SC 1564, it was held by the Hon'ble Supreme Court that seniority would be counted from the date of regularisation and not from the date of initial appointment on ad hoc basis.
(C) In Ram Ganesh Tripathi and Ors. v. State of UP and Ors. , 1997 (1) SCC 621, the Hon'ble Supreme Court held that adhoc employees whose services were subsequently regularised could not for the purpose of promotion or selection grade be treated as regularly appointed or granted seniority, from a date earlier than the date of their regularisation.
(D) In Union of India v. S.K. Sharma , 1992 (2) SCC 728, it was held by the Hon'ble Supreme Court that adhoc service cannot be counted for determining seniority and the order granting arrears of pay and allowances for actual working on the post on adhoc basis would not confer any right to claim seniority on the post by reckoning the adhoc service.
(E) In State of Tamil Nadu and Anr. v. E.Paripoornam and Ors. , AIR 1992 SC 1823, the Hon'ble Supreme Court held that temporary service of candidates cannot be counted for determining seniority.
(F) In Chief of Naval Staff and Anr. v. G. Gopalkrishna Pillai and Ors. , 1996 (1) SCC 521, where the adhoc appointment made without selection by a regularly constituted selection body and it was held by the Hon'ble Supreme Court that such ad hoc appointment even though uninterruptedly followed by regularisation in the same post would not count towards seniority.
15. Thus, from the above rulings of the Hon'ble Supreme Court, it is very much clear that where the adhoc or stop gap emergency appointments are made pending regular selection by a regularly constituted selection body, such adhoc or stop-gap emergency appointments even though uninterruptedly followed by regularisation in the same post, would not count towards seniority. The seniority would be counted from the date of regular selection and not form the date of initial adhoc or stop gap emergency/temporary appointments.
16. When this being the position, the whole case of the petitioner that the services rendered by him on officiating basis with effect from 9.8.71 should be counted while determining seniority and he should be assigned seniority from the date of his initial appointment and not from the date of regular appointment, falls to ground.
17. The learned counsel for the petitioner has placed reliance on a case reported in Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap , AIR 1989 SC 278,. In that case the Hon'ble Supreme Court observed that in case of adhoc appointment, period of adhoc appointment can be taken for determining seniority in absence of any specific rules to the contrary. Since in the present case, there is specific Rule 27 of the Rules of 1963 which provided as to in what manner adhoc appointment should be made, therefore, this authority would not be helpful to the learned counsel for the petitioner.
18. The learned counsel for the petitioner has also placed reliance on a case of Dr. M.A. Haque and Ors. v. Union of India and Ors., 1993 SCC (2) 213. This authority would also not be helpful as in that case, the Hon'ble Supreme Court held that seniority should be counted from the date of regular appointment through UFSC and since in the present case, the petitioner was found suitable by RPSC on 20.12.80, therefore, his seniority would be reckoned from 20.12.80!
19. The learned counsel for the petitioner further placed reliance on a case of D.P. Sharma v. Union of India, 1989 Supp (1) SCC 244. In that case the Hon'ble Supreme Court has observed that general rule is that seniority is to be regulated in a particular manner in a given period and it shall be given effect to and not be varied to discharge retrospectively. The facts of the present case differ from the facts of that case as in the present case, the initial appointment of the petitioner was not found according to the Rules. Therefore, this authority would not be helpful to the petitioner.
20. Before proceeding further, one thing has to be made clear that if initial appointment is according to Rules, in that case seniority should be reckoned from the date of initial appointment and not from the date of confirmation and for that authority of Hon'ble Supreme Court in the case of Rudra Kumar Sain and Ors. v. Union of India and Ors., 2000 SCC (L&S;) 1055, may be referred to. The position in the present case is otherwise in the manner that as the initial appointment of the petitioner was not found in accordance with the Rules of 1963, therefore, seniority cannot be given to the petitioner from the date of initial appointment.
21. Hence, from every point of view, the seniority of the petitioner is to be reckoned from 20.12.80 when he was found suitable by the RPSC and not before that date.
22. The argument that since Rule 7 was amended and came into force with effect from 23.12.76, therefore, seniority should be given to the petitioner from 23.12.76 has no force and the same has to be rejected on the ground that under Sub-clause 2 of Rule 27 of the Rules of 1963, which deals with temporary appointment, it has been clearly mentioned that no appointment made under Sub-rule 1 shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur. Since in the present case, the petitioner was found suitable by the Commission on 20.12.80 and, therefore, by the amendment in Rule 7 of Rules of 1963, the petitioner will not get any benefit and hence this argument is also rejected.
23. That apart from the above, Rule 28 of the Rules of 1963 provides that seniority in each grade of the service shall be determined by the year of substantive appointment to a post in the particular grade. Since in this case, the petitioner was substantively appointed with effect from 20.12.80, therefore, his seniority would be counted from the date of substantive appointment and not from the date of initial appointment.
24. During the course of argument, the learned counsel for the petitioner has further placed reliance on an order dtd. 29.10.97 passed by the Government in which though the candidates were declared suitable by the RPSC on 5.8.95, but seniority was given to them with effect from 18.9.91 after expiry of period of probation. This argument would not be helpful to the learned counsel for the petitioner because of the reason that the law laid down by the Hon'ble Supreme Court in the above mentioned cases are very much clear.
25. For the reasons mentioned above, the petitioner is not entitled to the relief sought for and the writ petition is liable to be dismissed.
Accordingly this writ petition is hereby dismissed. No order as to costs.
Writ Petition No. 3656/92
26. This writ petition raises the same controversy as involved in the above S.B. Civil Writ Petition No. 1164/92 and, therefore, this writ petition deserves to be dismissed in light of the observations made in writ petition No. 1164/92.
Accordingly this writ petition is also dismissed in light of the observations made in S.B. Civil Writ Petition No. 1164/92.