S.N. Jha, C.J.
1. These two appeals arise from the same judgment and order of the learned Single Judge and, accordingly, they were heard together.
2. The dispute relates to seniority between the appellants on the one side and private respondents on the other side. The private respondents, five in number, filed the connected writ petitions being SWP nos. 235 and 236 of 1983,1037 of 1985,1007 of 1985 and 1102 of 1986 for quashing certain orders by which appellant Muhammad Ashraf Shanthu and others were either promoted or temporarily posted on officiating basis as Chief Inspectors in the Department of Food and Supplies, impleading them as respondents. By the time the writ petitions came to be disposed of, the respondents, except Muhammad Ashraf Shanthu, had superannuated from service. Thus he alone preferred appeal, LPA No. 20 of 2003. The other appellant, Iftikhar Ahmad Banday, had not been made party / respondent. Feeling aggrieved by the findings recorded by the learned Single Judge impinging on his seniority vis-vis the writ petitioners, he sought leave to appeal, and leave having been granted vide order dated 19.2.2003, filed the appeal i. e. LPA No. 139 of 2002.
3. The facts so far as relevant to the dispute may be stated as follows.
4. Muhammad Ashraf Shanthu (in short, Shanthu) was appointed as Inspector in the Food and Supplies Department, Kashmir, on 7th July, 1975 on ad.hoc basis against vacancy caused by the ad hoc appointment of T. N. Zutshi as Supply Officer pending selection by the Divisional Recruitment Board. On 16th November, 1976, the Divisional Recruitment Board recommended him for appointment on the post of Verification Officer, which had been referred to it. On 22nd November, 1976 formal order of appointment with effect from 16th November, 1976 i. e. the date when recommendation was issued. Appellant Iftikhar Ahmad Banday (in short, Banday) likewise was appointed initially on ad hoc basis on 20th August, 1976 and on substantive basis on 11th May, 1977 with effect from 27th April, 1977 against the post of Supervisor on the recommendations of the Divisional Recruitment Board. The private respondents (shortly, the respondents) were appointed on different dates on ad hoc basis for a period of three months. After the period expired, their appointment came to an end and they were relieved. But pursuant to the letter of the Secretary, Food and Supplies Department purportedly in the light of discussion with Secretary, General Administration Department, their ad hoc appointments were continued till selection of candidates on the post of Tehsil Supply Officers by the State Recruitment Board and they came to be re-appointed by different orders. One such order dated 22nd August, 1973 in respect of Ghulam Hassan Malla and Iftikhar Ahmad Kirmani has been brought on record.
5. It may be mentioned here that in the meantime on 5th March, 1973, 24 posts of Tehsil Supply Officers in the scale of Rs. 280-520 i.e. the same scale as that of Verification Officer, were created by the Government 50% of which i.e. 12 posts were to be filled up by direct recruitment in the light of then existing provisions of the Jammu and Kashmir Food and Supplies (Subordinate) Service Recruitment Rules 1972. Accordingly, 12 posts of Tehsil Supply Officers were advertised on 11th May, 1973. It is on these posts that the private respondents came to be re-appointed 'till selection of candidates by the State Recruitment Board'.
6. According to the appellants the private respondents applied for appointment pursuant to the said advertisement dated 11th May, 1973 but failed. However, they were not only continued on the post but vide order dated 7th October, 1977 also 'deemed to have been appointed as regular Tehsil Supply Officer'. According to the private respondents, on the other hand, selection process initiated by advertisement dated 11th May, 1973 was never finalized and the respondents kept waiting for the result. Considering the prejudice, which the respondents had suffered on account of the non-finalization of the selection process, even though they continued in the employment and performed the duties and functions of the post, a decision was taken to regularize their services ('deemed to have been appointed') on the post of Tehsil Supply Officer.
7. The appellants have tried to find fault with the manner in which the respondents came to be appointed; the respondents too have pointed out loopholes in the appellants' case. According to them, their selection by the Recruitment Board was a farce inasmuch as only one post each was referred to the Board against which only one candidate i.e. the concerned appellant was considered and recommended for appointment. A common feature of the cases of both appellants and respondents, as would appear from the facts stated hereinabove, is that both sides were initially appointed on ad hoc basis but later regularized; the difference being that whereas ad hoc appointment of the appellants was replaced by regular appointment pursuant to the recommendations of the Recruitment Board, the respondents were 'deemed to have been appointed' on the post of Tehsil Supply Officer.
8. It may be stated here that the posts on which the appellants and the respondents were respectively appointed were different i.e. Verification Officer / Supervisor in the case of appellants and Tehsil Supply Officers in the case of respondents, but as these posts are in the same class and category and feeder posts for the higher post of Chief Inspector to be filled up by promotion from amongst them in terms of the recruitment rules, the question of inter se seniority becomes relevant.
9. The golden rule is that seniority is to be reckoned from the date of entry in the service. There is little difficulty in determining the reckoning date of seniority in the case of direct recruits. They become member of the service from the date they are appointed and start discharging duties of the post. The dispute regarding seniority - usually vis-a-vis the promotees - arises more often than not because of the retrospective effect given to the order of appointment by promotion or otherwise. In the instant case there is no dispute about the date of the appellants' appointment. Though they were appointed initially on ad-hoc basis, they do not claim the benefit of ad hoc appointment between 7th July, 1975 and 16th April, 1976 in the case of Shanthu and 20th August, 1976 and 27th April, 1977 in the case of Banday. Undisputedly, they came to be appointed on regular basis on the post(s) of Verification Officer and Supervisor respectively on the recommendation of the Divisional Recruitment Board with effect from 16th November, 1976 and 27th April, 1977 and it is from those dates that they claim seniority. They contend that the so called regularization of the respondents was contrary to the recruitment rules and, in any view, they cannot be allowed to steal a march over them giving them (respondents) the benefit of the alleged ad hoc employment by making their regularization retrospective to the detriment of the appellants.
10. The relevant provisions of the recruitment rules called the Jammu and Kashmir Food and Supplies (Subordinate) Service Recruitment Rules, 1972 (hereinafter referred to as 'the recruitment rules') framed under proviso to section 124 of the Constitution of Jammu and Kashmir (corresponding to Article 309 of the Constitution of India) may be noticed at this stage:
'6. Qualifications and method of recruitment. - (1) No person shall be eligible for appointment or promotion to any class, category or grade in the service unless he is in possession of the qualification as laid down in Schedule 'A'.
(2) Appointments to the Service shall be made -
(a) by direct recruitment;
(b) by selection/promotion;
(c) partly by direct recruitment and partly by selection/promotion in the ratio and in the manner ac indicated in Schedule 'A'.........
8. General qualifications. - No person shall be appointed to any post in the Service unless he-
(i) possesses the qualifications as laid down for the post in Schedule 'A'.
(ii) fulfils the requirements of recruitment as provided in the rules and orders for the time being in force.
Note 1:...
Note 2:...
9. Recruitment by competitive test. - (1) All competitive tests for recruitment to various posts shall be held by the concerned Recruitment Board twice in a year after an interval of six months in the manner provided in the Jammu and Kashmir Civil Services (Decentralization of and Recruitment to Non-Gazetted Cadres) Rules, 1969.
(2) The syllabi for the competitive tests shall be as shown in Schedules 'B', 'C' and 'D'.
11. Probation. - Persons appointed, whether direct or by promotion, to any class or category in the service shall be on probation for two years and their confirmation in the service will be regulated under the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956.
14. Seniority. - (1) Seniority of members of the service shall be regulated under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956
(2) The Administrative Department concerned shall maintain an upto date and final seniority list of the service.'
11. From a conjoint reading of the above provisions it is manifest that appointment to the Service can be made either by direct recruitment or by selection / promotion in the ratio and in the manner laid down in Schedule 'A', and no person can be appointed to any post in the Service unless he possesses the laid down qualifications and fulfils the requirements of recruitment as provided in the rules and orders for the time being in force. Rule 9 contemplates a competitive test for recruitment to various posts. The appointees - either by direct recruitment or by promotion to any class or category of posts in the Service - are to be kept on probation for two years. The seniority of members of the service is governed by the relevant provisions of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. The term 'member of the service' has been defined in Rule 3(c) to mean 'a person appointed to a post in the Service under the provisions of these rules or the rules and orders superseded by Rule 2'. The term 'Service' is defined under Rule 3(e) to mean 'the Jammu and Kashmir Food and Supplies (Subordinate) Service'.
12. It is not in dispute that the respondents were appointed on ad hoc basis for a duration of three months, and stood relieved from the post on expiry of the period, but were continued pursuant to letter of the Secretary, Food, Supplies and Transport Department dated 20th August, 1973, purportedly in the light of discussions which he had had with the Secretary, General Department 'till selection of candidates by the State Recruitment Board'. Such selection by the State Recruitment Board was never to be. On 7th October, 1977 an order was issued vide Government Order No. 496-FST of 1977 according sanction to the continuance of their ad hoc appointment from the date of their initial appointment, and directing their 'deemed appointment' as regular Tehsil Supply Officers 'hereafter'. The dispute largely revolves round the aforesaid order and it would, therefore, be appropriate to quote the same in extenso as under:
'Sanction is accorded to the continuance of the ad hoc appointment 12 Tehsil Supply Officers as per list Annexure 'A' to this order from the date of their initial appointment and they will be deemed to have been appointed as regular Tehsil Supply Officers hereafter.
By order of the Government of Jammu and Kashmir.'
13. It was submitted on behalf of the respondents that 24 posts of Tehsil Supply Officers were created on 5th March, 1973, 12 out of which - as per the then existing rules - were advertised for direct recruitment on 11th May, 1973. It was on those posts that the respondents were continued in the interests of administration. The respondents applied for direct recruitment and they were also interviewed but the selection process was not finalized. Considering the injustice and hardship suffered by them, the government took a decision to regularize their appointment, making it effective from the date of their initial appointment. It was submitted that both under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 vide Rule 5 and the Jammu and Kashmir Civil Services (Decentralization of and Recruitment to Non-Gazetted Cadres) Rules, 1969 vide Rule 14, the Government has power to relax the operation of any of the provisions of the rules.
14. In fairness to the respondents, it may be pointed-out here that in terms of Rule 15 of the Recruitment Rules, in regard to matters not specifically covered by these rules or by regulations or orders issued thereunder or by a special order, the members of the service shall be governed by the rules, regulations and orders applicable to the State services in general and, therefore, the provisions of the Classification, Control and Appeal Rules must be held to be applicable to members of the Food and Supplies (Subordinate) Service. The Decentralization Rules, however, cannot be made applicable. No doubt these rules were framed with respect to recruitment and selection for non-gazetted posts through Recruitment Boards, but after coming into force of the Recruitment Rules, they ceased to be applicable in relation to the service known as J&K; Food and Supplies (Subordinate) Service. Rule 2 of the Recruitment Rules specifically states that all existing rules and orders relating to matters covered by these rules shall stand superseded. Rule 6(iv) to the effect that 'persons appointed to the Service prior to the commencement of these rules shall be deemed to have been so appointed under these rules' also leads to the same conclusion. This notwithstanding, fact remains that the Classification, Control and Appeal Rules also contains relaxation clause though with a different phraseology.
15. Heavy reliance was placed on behalf of the respondents on the relaxation power of the government and it would be appropriate to deal with the point at this stage. Though Decentralization Rules have been held to be inapplicable, in view of reference to it in rule 9 of the Recruitment Rules and in fairness to the respondents, the relevant provision thereof vide rule 14 may be noticed as under:
'The Government may, where it is satisfied that the operation of any provision of these rules causes undue hardship in any particular case or class of cases, by order, dispense with or relax the requirements of that rule as it may consider necessary.'
16. The corresponding provision in the Classification, Control and Appeal Rules, 1956, viz, rule 5 runs as under:
'Any of these rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him.'
17. It is to be kept in mind that what is basically alleged to have been relaxed by the government is the mode of recruitment on the basis of selection by the Divisional Recruitment Board. The question is whether the rules of recruitment could be relaxed? There is distinction between 'rules of recruitment' and 'conditions of service'. While the conditions of service can be relaxed, the rules of recruitment cannot be. The following illuminating observations, if we may say so with respect, in Keshav Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272, may usefully be noticed.-
'... There is a distinction between 'rules of recruitment' and 'conditions of service'. To become a member of the service in a substantive capacity, appointment by the Governor shall be preceded by selection of a direct recruit by the Public Service Commission; undergoing training in Forestry for two years in the College and passing diploma are conditions precedent. If the contention of the promotees that rules of recruitment are conditions of service is accepted, it could be open to the Governor to say that 'I like the face of 'A' and I am satisfied that he is fit to be appointed; I dispense with the rules of recruitment and probation and appoint 'A' straightaway to the service in a substantive capacity as Assistant Conservator of Forest'. Take another instance. Passing the prescribed tests during probation is a condition of service. Similarly efficiency stands as an impediment for the promotee's confirmation. On consideration of the record and on objective satisfaction, in an appropriate case, the Governor may relax those or other similar conditions. So passing the tests prescribed is a condition of service. Therefore, the rule, which affects the right to confirmation or similar provision, is a condition of service. The rules relating to recruitment to the service either under Rule 5(a) or 5(b) or the manner of recruitment to service as per Appendix 'A' or 'B' are basic rules of recruitment to service.. We hold that Rule 5(a) and (b) and Appendices 'A' and 'B' are basic rules of recruitment and would not be subject to Rule 27.'
(Note. - Rule 27 referred to in the passage conferred relaxation power on the Governor).
18. In State of Orissa v. Sukanti Mohapatra, (1993) 2 SCC 486, it was held that though the power of relaxation stated in the rule was in regard to 'any of the provisions of the rules', this did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire ad hoc service of a direct recruit could not be treated as regular service. Again, in M.A. Haque (Dr.) v. Union of India, (1993) 2 SCC 213, it was held that for direct recruitment, the rules relating to recruitment through the Public Service Commission could not be relaxed. Similar view was taken in J&K; Public Service Commission v. Dr. Narinder Mohan, (1994) 2 SCC 630. It was held that the provisions of the Jammu and Kashmir Medical Recruitment Rules could not be relaxed for direct recruitment.
19. Rule 5 of the Classification, Control and Appeal Rules came up for consideration in Suraj Parkash Gupta v. State of J&K;, (2000) 7 SCC 561. The Supreme Court observed that in some cases the Court had upheld relaxation of recruitment rule especially with respect to recruitment within and outside the promotion quota, such as, G.S. Lamba v. Union of India, (1985) 2 SCC 604, and Narendra Chadha v. Union of India, (1986) 2 SCC 157, noticed with approval by the Constitution Bench in the Direct Recruits' case, (1990) 2 SCC 715, and held:
'But as we shall presently show, the recent trend of cases in this Court is entirely different.'
20. After survey of the case law on the point, the Supreme Court finally held:
'...Further, the power under Rule 5 of the J&K; (CCA) Rules, 1956 to relax the Rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment.'
21. In view of the above decisions of the Apex Court, the last one rendered in the context of rule 5 of the J&K; Civil Services (Classification, Control and Appeal) Rules, it must be held that the Government had no power to dispense with the requirement of selection by the Divisional Recruitment Board. Submission of counsel for the respondents in this regard must be rejected.
22. As a matter of fact, in absence of any rule regularization cannot be a mode of appointment. It was held in R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409, that regularization itself is not a mode of appointment. If the appointment is in infraction of the rules and it has effect of the violation of the rules or the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act, which is within the power and province of the authority, where there has been some non-compliance with procedure or manner which does not go to the root of the appointment. In B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507, it was held that where rules have been framed under rule 309 of the Constitution, no relaxation is permissible in exercise of executive power of the Government in contravention of the rules. In Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra, 1994 Supp (3) SCC 380, the relevant rules postulated regularization of temporary employees selected through the Public Service Commission. The regularization of the appellant selected by another agency - although eligible and continuously working for nine years - was held to be illegal. There are decisions galore on the point and it is not necessary to multiply the authorities.
23. However, it is too late in the day to go behind the appointment of the respondents after twenty-seven years. Even if the mode of appointment was not correct and in accordance with rules, it would be highly unjust and arbitrary to question their appointments at this stage. In fact, it is they who had approached this Court. The appellants or, for that matter, any other person never questioned their so-called 'deemed' appointment. The respondents approached the Court raising dispute of seniority and it is this question alone which needs to be decided. We have considered the validity of order dated 7th October, 1977 in order only to find inherent strength in the respondents' case. Having found otherwise, the question is whether the respondents can claim seniority over the appellants by virtue of aforesaid order dated 7th October, 1977.
24. Order dated 7th October, 1977 has been quoted above. It can be dissected in two parts. By the first part, sanction was accorded to the 'continuance' of ad hoc appointment of the respondents from the date of their initial appointment. By the second part, they were 'deemed' to have been appointed as 'regular' Tehsil Supply Officers 'hereafter'. In our opinion, on a plain reading of the order it is manifest that what was regularized was continuance of ad hoc appointment of the respondents till date i.e. 7th October, 1977 when they were 'appointed', rather 'deemed to have been appointed' as 'regular' Tehsil Supply Officers. Such appointment or deemed appointment, therefore, was to be effective from the date of the order. If there was scope for any other interpretation, word 'hereafter' after the words 'deemed to have been appointed' amply clarifies that the appointment was not intended to be retrospective. It is plain that word 'hereafter' was deliberately added to obviate any doubt in that regard because even in absence of that word the object i.e. regular appointment of the respondent could be achieved.
25. The learned Single Judge has held that the respondents are entitled to count seniority from the date of initial appointment, including the period of ad hoc appointment and the word 'hereafter' cannot be interpreted in a manner so as to deprive the respondents of the benefit of continuance of the appointment. In our opinion, the principle that period of ad hoc appointment is to be counted towards seniority can be applied only where such ad hoc appointment is not contrary to rules. In the well known case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715, the Constitution Bench of the Supreme Court held that 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 stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority'. The present case, in our opinion, falls within the ambit of the said principle laid down by the Apex Court.
26. The legal import of the term 'ad hoc' or 'stop-gap' arrangement came up for consideration by another Constitution Bench of the Apex Court in Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25, wherein observing that it is not possible to lay down any strait-jacket formula nor can an exhaustive list of circumstances and situations in which such an appointment (ad hoc, fortuitous or stopgap) can be made which would depend on circumstances and situations in which the appointments are made, and also depend on the provisions of the rule and the context in which and the purpose for which the expressions are used, it was observed:
'...If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a 'stopgap' arrangement and appointment in the post as 'ad hoc' appointment'.
27. Applying the above test in the instant case it may be recalled that the posts of Tehsil Supply Officers had been created on 5th March, 1973 and considering the delay which the recruitment was likely to take, the respondents were re-employed and allowed to function on the posts in the interests of administration. In our opinion it was out and out a case of ad hoc appointment. Being contrary to the recruitment rules, the respondents cannot claim benefit of the officiation as ad hoc appointees for the purpose of seniority, muchless to the detriment of the appellants.
28. In Ramendra Singh v. Jagdish Prasad, 1984 (Supp) SCC 142, the Apex Court held that although the executive power of the State is co-extensive with and in no way narrower than the legislative power, but in exercise of that power the State cannot make retrospective appointment so as to affect the seniority of the existing incumbents, which eventually may result in reducing their chances of promotion.
29. In V. Sreenivasa Reddy v. Govt. of Andhra Pradesh, 1995 Supp (1) SCC 572, the appellants were temporarily appointed as Assistant Executive Engineer (earlier known as Junior Engineer) de hors the rules to fill vacancies in public interest. Subsequently, the respondents were selected by Public Service Commission as direct recruits. Though the appellants were eligible for the post, apparently, they did not apply for appointment. After the respondents were appointed and placed on probation, the appellants' services were regularized from the date of their initial appointment as the government had meanwhile dispensed with consultation with the Public Service Commission and directed regularization of temporary employees from the date subsequent to the last regular appointment. It was held that the respondents became members of the service from the date of their appointment and the appellants cannot claim seniority over them.
30. The discussion on the point would be incomplete without referring to rule 24 of the Jammu and Kashmir Classification, Control and Appeal Rules, 1956 which provides for the manner of determination of seniority of persons subject to the rules. It may be recalled that by virtue of rule 15 of the Recruitment Rules, the (CCA) Rules are applicable. Rule 24 of the (CCA) Rules runs as under:
'24. Seniority. - (1) The seniority of a person who is subject to these Rules has reference to the service, class category and grade with reference to which the question has arisen. Such seniority shall be determined by the date of first appointment to such service, class, category or grade, as the case may be.
Note 1.-............
Interpretation. - The words 'date of first appointment' occurring in the above Rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and / or passing of any examination or examinations and / or tests.
Provided that the inter se seniority of two or more persons appointed to the same service, class, category or grade simultaneously, will, notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being posted to different stations, be determined:
(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade;
(b) in the case of those recruited direct (except those who do not join their duties when vacancies are offered to them) according to the positions attained by and assigned to them in order of merit at the time of competitive examinations or on the basis of merit and ability and physical fitness etc., in case no such examination is held for the purpose of making selections;
(c) as between those promoted and recruited direct, by the order in which appointments have to be allocated for promotion and direct recruitment as prescribed by the Rules.
Note.-.........'
31. On a plain reading of the above rule it would appear that seniority has to be reckoned from the date of first appointment, meaning thereby the date of first substantive appointment i.e. the date of permanent appointment or the date of first appointment on probation on a clear vacancy. In the case of appellants there is no dispute about the date of their first appointment within the meaning of rule 24 of the (CCA) Rules, being the date when they were appointed on probation i.e. 16th November, 1976 and 27th April, 1977 respectively. The respondents came to be appointed / deemed to have been appointed on 7th October, 1977. Their claim of retrospective appointment from the date of initial appointment having been rejected above, they can claim seniority from the date they came to be appointed as regular Tehsil Supply Officers i.e. 7th October, 1977. Thus not only on general principles, but also in terms of the service rules, the respondents cannot claim seniority over the appellants.
32. In light of the above discussion, the decision of the learned Single Judge giving the respondents benefit of their ad hoc appointment and holding them senior to the appellants cannot be said to be in accordance with law.
33. In the result the appeals are allowed. The impugned judgment and order of the learned Single Judge is set-aside so far as the appellants are concerned.
34. There will be no order as to costs.