Holding

Ad hoc appointments made under the proviso to Rule 19(1) for administrative exigency do not determine seniority and cannot be counted for seniority; seniority must be based on regular promotion by the D.P.C., and the seniority list stands.

Summary

The appellants, originally appointed as Overseers and later as Junior Engineers in the Madhya Pradesh Public Works Department, were promoted on an ad hoc basis to Assistant Engineer on July 22, 1971 under the proviso to Rule 19(1) of the 1969 Recruitment Rules because of an administrative exigency. They later qualified for regular promotion and were selected by the Departmental Promotion Committee (D.P.C.) on November 22, 1972, after which a seniority list placed their seniority from that date, ignoring their earlier ad hoc service. The appellants challenged the seniority list, arguing that their ad hoc service should count for seniority and that their appointment was made under Rule 7(4) rather than the proviso to Rule 19. The Court held that the ad hoc appointments were expressly made for administrative exigency and were not intended to determine seniority; consequently, such service cannot be counted for seniority, and the seniority list prepared after the D.P.C. selection is valid. The Court also rejected the contention that the appointments fell under Rule 7(4) and affirmed that regular promotion requires D.P.C. selection. The appeal was dismissed, confirming the High Court's decision.

Issues considered

Whether an ad hoc appointment of Junior Engineers as Assistant Engineers under the proviso to Rule 19(1) for administrative exigency confers seniority from the date of that appointment.
Whether the period of ad hoc service can be counted towards seniority for promotion purposes.
Whether the appointment of the appellants was made under Rule 7(4) of the Recruitment Rules or under the proviso to Rule 19(1).
Whether the seniority list giving weightage to Overseers (respondents 2‑39) is legally valid.

Legislation cited

Subjects

seniorityad hoc appointmentadministrative exigencypromotiondepartmental promotion committeerecruitment rulespublic works departmentMadhya Pradesh

Judgment

D.N. AGRAWAL AND ANR.
A
v.
STATE OF MADHYA PRADESH AND ORS.
y
MARCH 23, 1,990

[KULDIP SINGH AND P.B. SAWANT, JJ.] B

Madhya Pradesh P. W.D. (Gazetted) recruitment Rules, 1969:
Rule 19( ])-Assistant Engineers-Appointment on ad hoc basis for
purely administrative exigencies right to claim seniority from date of
initial appointment-Whether promissible.

The two appellants had joined as overseers in the P.W .D. of the
c
respondent Madhya Pradesh State. Thereafter they were appointed as
Junior Engineers. The grievance of the appellants is with regard to
their seniority in the next promotional post viz, that of Assistant
Engineer.
D
Recruitment Rules which govern the promotional post lay down
that the Departmental promotion Committee is required to consider the
names of all eligible candidates on merits and judge their suitability in
all respects on merit-cum-seniority basis. The D.P.C. is also required to•
arrange the names of all the selected candidates in the order of their
merit. In the case of exceptionally meritorious junior he is given a E
higher number in the selection list. This list is sent to Public Service
Commission for its approval. After approval the list becomes the select
list and the promotions are made from this list serial wise. Under the
Rules to be eligible to be considered for promotion to the post of
Assistant Engineer a Junior Engineer has to have an experience of two
years as Junior Engineer. F

As the State Govt. wanted a certain number of Assistant
Engineers but enough number with requisite qualifying service were
not available so taking resort to the Rule of Administrative Exigency
contained in the proviso to Rule 19(1) of the Rules the Govt. promoted
some Junior Engineers including both the appellants is Assistant G
Engineers on July 22, 1971 on purely ad hoc basis. On August 7, 1972
respondents 40 to 63 were appointed as Assistant Engineers by direct
recruitment and on November 22, 1972 respondents 2 to 39 and the
appellants were selected as Assistant Engineers by the D.P.C. On the
same date the State Govt. issued an order of appointment of the appel-
lants and respondents 2 to 39 in which appellant No. 1 was shown at H

131
132 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

serial No. 14 and appellant No. 2 at serial No. 28. The State Govt.
A
thereafter prepared a seniority list of Assistant Engineers as per the
order of November 22, 1972. The appellants challenged the seniority list
before the High Court by a-Writ Petition. The High Court dismissed the
Writ Petition.

B Hence the present appeal. Dismissing the appeal, this Court,

HELD: Under the Rules to be eligible to be considered for promo-
tion to the post of Assistant Engineer, a Junior Engineer has to have an
experience of two years as Junior Engineer. l 133G]

In the instant case, unless the D.P.C. makes the selection, none
c can be appointed as Assistant Engineer regnlarly. The appellants were
ineligible to be appointed as Assistant Engineers initially. Their appoint-
ments were made specifically under the power given to the Government
to make ad hoc appointments for administrative exigency. The appoint-
ment orders made it clear that the appointments were in the said
D Special Circnmstances and that they will not be deemed to determine
seniority for any purpose whatsoever. [138C-D]

Once it is held that the appellants were appointed on ad hoc basis,
what comes into play is the proviso to Rule 19(1) which permitted the
Government to make such ad hoc appointments for purely administra-
E tive exigencies, [139l>]
/ .
:.··
Baleshwar Dass & Ors. v. State of U.P. & Ors etc., [1981] I
. S.C.R. 449 and G.P. Doval & Ors. v. Chief Secretary, Government of
U.P. & Ors., [1984] 4S.C.C. 329, referred to.

F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 931
of 1986.

From the Judgment and Order dated 3.10.1985 of the Madhya
Pradesh High Court in Civil Misc. W.P. No. 1510 of 1981.

G P.N. Lekhi, M.K. Garg, Aman Lekhi and Lokesh Kumar for the
appellants.

R.B. Datar, Sakesh Kumar, Uma Nath Singh, Satish K.
Agnihotri .and Ashok Singh for the respondents. >
H The Judgment of the Court was delivered by
D.N. AGRAWAL v. STATE OF M.P. (SAWANT, J.) 133

SAW ANT, J. The two appellants in this case had joined the
A
service in the Public Works Department of the respondent-Madhya
Pradesh State, as Overseers. They were thereafter appointed as Junior
· Engineers·by direct recruitment-the first appellant on August 29,
1969 and the second appellant on September 12, 1969. Although the
High Court in its impugned judgment has stated that they were
promoted as Junior Engineers from the posts of Overseers, it appears B
that that statement is not correct since their orders of appointment to
the post of Junior Engineer which are Annexures P-1 and P-2 to the
writ petition filed in the High Court show that their appointments as
Junior Engineers were not by way of promotion. This, however,
makes no difference to the issues involved in the present appeal. We
have stated it to keep the record straight. The grievance of the appel-
lants is with regard to their seniority in the next promotional post, viz., c
that of Assistant Engineer.

___...-:(__ - 2. The Recruitment Rules which govern the said promotional
post are known as Madhya Pradesh P.W.D. (Gazetted) Recruitment
Rules, 1969 (hereinafter referred to as the 'Rules'). According to these D
Rules, Junior Engineers, Overseers, Head Draftsmen and Draftsmen
are eligible to be considered for promotion to the post of Assistant
Engineer on their securing the requisite experience. Each of these

'
categories further has a fixed quota of its own. The Departmental
Promotion Committee, D.P.C. to be short, whose constitution is also
prescribed in these Rules, is required to consider the names of all the E
eligible candidates on merits, and judge their suitability in all respects
on merit-cum-seniority basis. The D.P.C. is also required to arrange
the names of all the selected candidates ordinarily in the order of their
seniority unless a junior is exceptionally meritorious in which case, of
course, he is given a higher number in the selection list. This list is then
sent through the State Government to the Public Service Commission F
for its consideration and approval. The list as approved by the Com-
mission then becomes the select list, and promotions are made from
this list in the same order as is arranged in the list.

However, in case of an administrative exigency, the State
Government is given power to appoint anyone not included in the said G
list if the vacancy is riot likely to last for more than three months.
Under the Rules, to be eligible to be considered for promotion to the
post of Assistant Engineer, a Junior Engineer has to have an expe-
rience of two years as Junior Engineer.

3. It appears that the State Government wanted a certain H
134 SUPREME COURT REPORTS [1990] 2 S.C.R.

A number of Assistant Engineers, but enough number of Junior
Engineers with requisite qualifying service were not available at the
relevant time. Admittedly the appellants were two of such unqualified
Junior Engineers since they had not completed their two years'
qualified service as Junior Engineers at the relevant time. Hence,
taking resort to the Rule of Administrative Exigency contained in the
B proviso to Rule 19(1) of the said Rules, the Government promoted
some Junior Engineers including both the appellants as Assistant
Engineers on July 22, 1971 on purely act hoc basis. In the order
appointing then, it was stated as follows: "Since adequate number of
Junior Engineers with requisite qualifying service are not available for
appointment as Assistant Engineers, and but for these promotions large
C number of Assistant Engineers' posts would remain vacant adversely
affecting the construction work . . . . . . . . . . . . . . . . . . . . . . . These
appointments will not be deemed to determine seniority as Assistant
Engineer for any purpose whatsoever."

4. It is not disputed that on July 22, 1971 when the appellants
D were so appointed as Assistant Engineers on :ad hoc basis, appellant
no. I was short of'two years' qualifying service period by one month
and appellant No. 2, by two months. They became qualified on August
22, 1971 and on September 11, 1971 respectively.

5. It appears that while the appellants continued to act as
E Assistant Engineers on ad hoc basis, on August 7, 1972. respondents
40 to 63 were appointed as Assistant Engineers by direct recruitment.
Thereafter, on November 22, 1972 respondents 2 to 39 and the appel-
lants were selected as Assistant Engineers by the D.P.C On the same
'
date, the State Government issued an order of appointment of the
appellants and respondents 2 to 39 in which appellant no. 1 was shown
F at Serip.l No. 14 and appellant no. 2 at Ser_illl No. 28. The State
Government thereafter prepared a seniority list of Assistant Engineers
which reflected the seniority of appellants as having been appointed on
and from November 22, 1972 and as per the ranking given in the said
order of November 22, 1972. The appellants challenged the seniority
list before the High Court by a writ petition. Although it appears the
G appellants had also joined to the petition, those Junior Engineers who
were promoted as Assistant Engineers along_ with the appellants by the
same order and whose seniority in the list had reflected their place-
ment in the order of appointment, the challenge to the seniority of
those Junior Engineers was given up at the time of the arguments >
· before the High Court, and it was confined to the seniority of respon-
H dents 2 to 39 who were Overseers and were selected by the D.P.C.
D.N. AGRAWAL v. STATE OF M.P. [SAWANT. !.] 135

from their own quota as Assistant Engineers along with the appellants,
A
and to the seniority of respondents 40 to 63 who were appointed by
direct recruitment on August 7, 1972.

6. The first challenge common to the seniority of all the respon-
dents 2 to 63 was based on the contention that the appellants' ad hoc
service as Assistant Engineers from July 22, 1971, when th<oy were B
promoted on ad hoc basis, to November, 22, 1972, on which date they
were selected as regular appointees, was not taken into account. The
second challenge was confined to the seniority given to respondents 2
to 39 by giving them a weightage of their experience as Overseers. The
High Court negatived both the challenges and dismissed the writ peti-

- tion. Hence the present appeal.

7. The same contentions which were advanced before the High
c
Court was advanced before us. We will, therefore, first examine the
grievance that the ad hoc service of the appellants was not counted for
the purpose of the appellants' seniority. A heavy reliance is placed on
behalf of the appellants on the decision of this Court reported in D
Baleshwar Dass & Ors. etc. v. State of U.P. & Ors. etc., [1981] 1
S.C.R. 449 in support of the contention that ad hoc officiation is
entitled to be counted for the purpose of seniority. The ratio of the
said decision however is not applicable to the present case. In that case
there was no dispute that the temporary appointees to the posts, who
were claiming benefit of their temporary appointment or officiation E
were qualified to be appointed to the posts when they were initally
appointed. All the procedural formalities of their appointments were
also followed, namely, they had completed their probationary period,
the PubFc Service Commission had given its approval and they had
also been medically examined and found it. No rule was breached in
making their appointment. The vacancies to which they were F
appointed were also substantive vacancies. Their appointments,
however, had continued for a number of years although there was no
obstacle whatsoever in making them regular or permanent. All that
had remained to be done was the issuance of a formal order of
regularisation of the appointment which for unexplained reasons, the
Govt. had failed to do for a number of years. The Court therefore G
observed that "a post of short duration, say of a few months, is diffe-
rent from another which is terminologically temporary but is kept on
for 10 or more years under the head "temporary" for budgetary or
other technical reasons. Those who are appointed and hold temporary
posts of the latter category are also members of the service provided
they have been appointed substantively to that temporary post". A H
136 SUPREME COURT REPORTS [1990] 2 S.C.R.

little later, the Court made further observations in this connection, as
A
follows:

"Government will ascertain from this angle whether
the capacity in which posts have been held was substantive
or temporary. If it is not, the further point to notice is as to
B whether the appointments are regular and not in violation of
any rule, whether the Public Service Commission's approval
has been obtained and whether probation, medical fitness
etc., are complete. Once these formalities are complete, the
incumbents can be taken as holding posts in substantive
capacities and the entire officiating service can be consi-
dered for seniority. For other purposes they may remain
c temporary .............. .

The normal rule consistent with equity is that officiat-
ing service, even before confirmation in service has rele-
vancy to seniority if eventually no infirmities in the way of
D confirmation exist. We see nothing in the scheme of the
Rules contrary to that principle. Therefore~ the point from
which service has to be counted is the commencement of
the officiating service of the Assistant Engineers who might
not have secured permanent appointments in the beginning
and in that sense may still be temporary, but who, for all
E other purposes, have been regularised and are fit to be
absorbed into permanent posts as and when they are
vacant."

(Emphasis supplied)

F It will thus be seen that in that case the appointments to the substan-
tive vacancies were made according to rules after complying with the
procedure for regular appointment. There was no requirement of the
Recruitment Rules which was left to be complied with. In our case
unles the D.P.C. makes the selection, none can be appointed as
Assistant Engineer regularly.
G
Similar were the facts in the case of G.P. Doval & Ors. v. Chief
Secretary, Government of U.P. & Ors., [ 1984] 4 S.C.C. 329 in that case
the petitioners were temporarily appomted as Khandsari Inspectors ~
having been selected in the departmental competitive test and int~r-
view. Their appointments were however "subject to final selection by
H Public Service Commission at a later date". Some of the respondents
D.N. AGRAWAL v. STAIB OF M.P. [SAWANT, J.[ 137

were also appointed to the same posts subsequently in the same
manner. The names of these recruits were later forwarded to the A
Public Service Commission which accorded its approval to their
appointments. The Department drew up a provisional seniority list on
the basis of the recommendations of the said Commission by taking the
date of approval/selection by the Commission in respect of each candi-
date as the basis for determining the length of continuous officiation. B
The Department supported its action on the ground that it had pre-
pared the list by reckoning seniority from the date of their "substan-
j tive appointments" in accordance with an earlier Government Order
of 1940 which prescribed certain guidelines or model rules for framing
rules governing conditions of service. The model set out in the order
suggested two independent principles for determining seniority,
namely, (i) the date of substantive appointment and (ii) the date of the c
order of first appointment, if such appointment is followed by confir-
mation. In the seniority list, the petitioners were placed below the
respondents though they were initially appointed prior to the respon-
dents. This Court quashed the seniority list holding that the question
as to from what date the service is to be reckoned will depend upon the D
facts and circumstances of each case. It was observed there that:

"Where officiating appointment is followed by
confirmation, unless a contrary rule is shown, the service
rendered as officiating appointment cannot be ignored for
reckoning length of continuous officiation for determining E
the place in the seniority list. If the first appointment is
made "by not following the prescribed procedure but later
on the appointee is approved making his appointment regu-
- lar, then in the absence of the contrary rule, the approval
which means confirmation by the authority which had the
authority, power and jurisdiction to make appointment or F
recommend for appointment, will relate back to the date on
which first appointment is made .................. If a
stopgap appointment is made and the appointee appears
before the Public Service Commission when the latter
proceeds to select the candidates and is selected, there is no
justification for ignoring his past se.rvice. At any rate, there G
is no justification for two persons selected in the same
manner being differently treated."
.. ,( (emphasis ours)

The Court also found there that the earlier order of 1940 had not
prescribed any binding rule of seniority and assuming that it did, the H
138 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

A seniority list did not conform to the model. The model set out in the
Government Order prescribed two different starting points for reckon-
ing seniority and it was difficult to assume that the department
adopted one and rejected the other without making a specific rule in
that behalf.

B It will thus be clear that the Court was dealing with an altogether
different situation in both the aforesaid cases. There was no dispute in
those cases that except for the terminology and nomenclature there
was no distinction between a temporary and permanent appointment
and all that remained to be done in those cases was the formalisation of
the appointments. That is not the situation in the present case. The
appellants were ineligible to be appointed as Assistant Engineers
C initially. Their appointments were made specifically under the power
given to the Government to make ad hoc appointments.for administra-
tive exigency. The appointment orders made it clear that the appoint-
ments were in the said special circumstances and that they will not be
deemed to determine seniority for any purpose whatsoever. There is
D further no dispute that no appointments could be made as Assistant
Engineers except by way of either direct recruitment through the
Public Service Commission or promotion through the selection made
by the D.P.C. as per the quota assigned to different categories. The
first D.P.C. which met for selection, after the appellants became
qualified for being promoted, was held on October 12, 1972. It is in
E this meeting that the appellants were selected along with the other ''
.-~'.

qualified promotees, namely, respondents 2 to 39. The D.P.C. further
had the power also to arrange the seniority of the promotees according
to merits. For all purposes, therefore, the appointment of the appel-
lants on July 22, 1971 was ad hoc and not according to rules. Their
selection/appointment on November 22, 1972 by the D.P.C was
-
F further not a mere formality or a process undertaken only for formali-
sation of their earlier appointment. In the circumstances, their
appointment on November 22, 1972 could not relate back to July 22,
1971 and hence they were not entitled to claim their officiation bet-
ween July 22, 1971 and November 22, 1972 for being counted for the
purposes of their seniority for placing them either above respondents
G 40 to 63, who were directly recruited on August 7, 1972 or above
respondents 2 to 39, who were promoted by the D.P.C. along with
them, on November 22, 1972, and who happened to be senior to them
even as Junior Engineers.

8. The other leg of the aforesaid contention was that the appel-
H !ants were appointed under Rule 7(4) of the said Rules and not under
D.N. AGRAWAL v. STATE OF M.P. (SAWANT, J.] 139

the proviso to Rule 19 of the Rules inasmuch as under the latter
A
provision, their appointments could not have been made. The argu-
ment was that the latter provision permitted appointments for an
administrative exigency only in vacancies which did not last for more
than three months. Since the appellants continued in the post for more
than a year before they were selected on November 22, 1972, it should
be held that their appointment was under Rule 7(4) of the Rules. As B
has been pointed out by the High Court, the recourse to Rule 7(4) is
unwarranted because that provision deals with the method of recruit-
• ment and permits the State Government to adopt any method other
.J
than those provided there.One of the methods permitted by that provi-
sion admittedly is promotion, and since the appellants were admittedly
promoted, though they were not qualified on that date, their case
would not be covered by the third method of recruitment which is c
other than the one prescribed there. Therefore, the argument that
they should be considered to have been recruited to the post of
Assistant Engineer by a method other than that expressly provided by
the said Rule 7(4) is only to be stated to be rejected. Once it is held
that they were promoted on ad hoc basis, what comes in the play is the D
proviso to Rule 19( I) which permitted the Government to make such
ad hoc appointments for purely administrative exigencies.

It was then contended that since the proviso to Rule 19(1)
permitted appointments in vacancies which were to last for more than
three months, it should be held that after the appellants became eligi- E
ble during the first three months of their appointment, their further
continuation was on regular basis. This argument has also no sub-
stance in it, for as pointed out earlier, for being selected for appoint-
ment as Assistant Engineers, the appellants had to face the D.P.C. and
the Government had no power to make regular appointments to the
said post unless the D.P.C. had selected the candidates for the posts. F
Secondly, the proviso to Rule 19( 1) has to be read liberally. The said
provision has to be interpreted to mean that the appointments under
the said provision can be made for three months at a time. Thus there
was nothing to prevent the State Government from renewing the
appointment of the appellants every three months.
G
9. The second contention is directed against the seniority of
respondents 2 to 39 and proceeds on the ground that the weightage
given to them is illegal. This contention must also fail for the following
reasons. Admittedly the Rules of Recruitment prescribe appointments
to the post of Assistant Engineer from two sources, namely, (i) by
direct recruitment and (ii) by promotion in the proportion of 50-50. H
140 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

A The promotional posts are further required to be filled in from three
different cadres in the following proportion: .
~·;:
·-:-.· ·~
(i) 25% from Junior Engine~rs

(ii) 20% from Overseers
B
(iii) 5% from Head Draftsmen/Drafsment.

Under the Madhya Pradesh P. W.D. (non-gazetted) Recruitment
Rules of 1972 (hereinafter referred to as 1972 Rules), the Overseers
who acquire an Engineering degree or qualify for A.M.l.E. become
c eligible for promotion to the post of Junior Engineers as soon as the
vacancy arises. The inter se .seniority between the Overseers and the
Junior Engineers in the cadre of Junior Engineers is to be fixed in
accordance with. Rule 14(3) of the said Rules by giving weightage of
two months for every year of their service to the Overseers. When the
D.P.C. met on October 12, 1972 and considered the cases both of the
D appellants and the respondents, the Committee had submitted the
names of the selected candidates cadre-wise, i.e .. separately of Junior
Engineers, Overseers, Head-Draftsmen/Draftsmen. The General
Administration Department thereafter considered the matter. Under
the Rules, the Overseers were required to obtain an Engineering
degree or qualify for A.M.l.E. and were also required to serve for 12
·E years as Overseers to become eligible for being considered for
appointment as Assistant Engineers. As against this, the Junior
Engineers who were degree holders were required to serve only for two
years to become eligible for being considered to the said post. Takmg
these aspects into consideration their inter se seniority, namely, the
interse seniority of the appeilants and the Overseers promotee respon-
de~ts was fixed by the Government according to the following formula
which was in vogue for a number of years:

(a) lh the cadre of Junior Engineers, Overseers so promoted
were given weightage as per Rules of 1972, and promotional
dates for seniority in the cadre were fixed accordingly.
G .
(b) In the cadre of Assistant Engineers, the date of reckoning of
seniority was the one on which Junior Engineer or Overseer or
Head-Draftsman/Draftsman completed the respective span of
service for eligibility.

H Hence, when seniority was fixed as per the impugned seniority list of
D.N. AGRAWAL v. STATE OF M.P. [SAWANT, J.i 141

the cadre of Assis:_,11 Engineers, when admittedly the Rules of 1972 A
were in vogue, it was fixed according to the aforesaid formula. There is
no dispute that according to the said formula, which can hardly be
faulted, respondents 2 to 39 who were senior as Junior Engineers,
were entitled to seniority over the appellants. It may further be
pointed out that the Rules of 1972 were not challenged either before
the High Court or before us. All that was challenged before the High B
Court was that these Rules were restricted in their application Qnly to
the promotions made to the post of Junior Engineers and were not
applicable to the promotions made to the post of Assistant Engineers.
On the face of it, such a challenge is meaningless because Rule 14 of
the said Rules is clearly meant for the promotions to the post of
Assistant Engineers. Otherwise the seniority given to the Overseers c
etc. in the seniority list of Junior Engineers on the basis ot the their
service as Overseers, is me8.ningless. For all these reasons, we find no
substance in this contention either.

10. We, therefore, confirm the decision of the High Court and
dismiss the appeal. There will, however, be no order as to costs. D

R.N.J. Appeal dismissed.

r