Holding

In the absence of a specific seniority rule, continuous officiating service—including ad‑hoc appointments made after considering seniority claims—determines seniority, and the Service Regulation 1959 does not apply to the Undertaking’s employees.

Summary

The Delhi Water Supply and Sewage Disposal Committee appointed several Assistant Engineers as Executive Engineers on a one‑year ad‑hoc basis, after which their services were regularised on 8 January 1971. The seniority list prepared by the Undertaking excluded the ad‑hoc period and was based solely on the rankings in the feeding cadre of Assistant Engineers. The petitioners challenged this list, arguing that continuous officiating service, including the ad‑hoc period, should determine seniority. The Supreme Court first held that the Delhi Municipal Corporation Service Regulation 1959 does not apply to the Undertaking’s employees because their salaries are paid from a separate Water Supply and Sewage Disposal Account, not the General Account. In the absence of any statutory seniority rule, the Court affirmed the established principle that length of continuous service, including ad‑hoc appointments made after considering the claims of seniors, governs seniority. Consequently, the division‑bench decision that the seniority list was invalid was upheld. The appeals were dismissed.

Issues considered

The Delhi Municipal Corporation Service Regulation 1959 applicability to the Undertaking’s employees.
Whether ad‑hoc service should be counted for seniority of Executive Engineers in the absence of a specific rule.
The validity of the seniority list that excluded ad‑hoc service.

Legislation cited

Delhi Municipal Corporation Acts. 480, s. 92, s. 93, s. 97, s. 98, s. 99

Subjects

seniorityad‑hoc appointmentservice jurisprudenceDelhi Municipal Corporation ActArticle 14Article 16service regulationexecutive engineerregularisation

Judgment

DELHI WATER SUPPLY AND SEWAGE DISPOSAL
COMMITTEE AND ORS.
A'
v.
R.K. KASHYAP AND ORS.

OCTOBER 28, 1988
B
iG.L. OZA AND K. JAGANNATHA SHETTY, JJ.]

Delhi Municipal Corporation Act-Sections 93, 97, 98, 480/ Delhi
Municipal Corporation Service ilegulation 1959-Applicability-Delhi
Water Supply and Sewage Disposal Undertaking-Cadre of Executive
Engineer-Inter se seniority-Whether should reflect the corresponding
rankings in the feeding cadre of Assistant Engineers-Ad hoc Service C
rendered-When can be taken into considerauun for fixing seniority.

Articles 14 and 16-Seniority in cadre-Fixation of-Ad hoc
' service-When can be taken into consideration-Only when ad hoc
appointment made after considering the claims of senior in cadre. D

Section 92 of the Delhi Municipal Corporation Act empowers the
appellant-Undertaking to make appointments to category 'A' posts
after consultation with the U.P.S.C. However, such consultation is not
required if the appointment isfor a period not exceeding one year. In
the absence of any regulation made by the Corporation with regard to E
the conditions of service of its employees, the Cent~al Government has
framed Delhi Municipal Corporation Service Regulation 1959, Regula-
tion 3 of which provides that these Regulations shall be applicable to all
Municipal Officers and other Municipal employees whose pay is
chargeable to the 'General Account' of the Municipal Fund.
F
The appellants as well as respondents, who were working as
Assistant Engineers, were appointed as EJ1ecutive Engineers on diffe-
rent dates for a period of one year or tilLt\le posts are tilled up in
consultation with the Commission. They all -worked continuously in
their respective posts till their services were regularised by the Commis-
sion with effect from 8 January, 1971. Their "eniorlty in the cadre of G
Executive Engineers was determined reflecting the respective rankings
in the feeding cadre, i.e., Assistant Engineer excluding the services
rendered on ad-hoc appointments. The learned Single Judge of the
Delhi High Court dismissed the writ petition, challenging the validity of
seniority list, filed by the aggrieved officia~. On appeal the Division
Bench of the High Court allowed the appeld:holding that the determina- H
633
634 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

!iflll (If se11jority of officers is no\ goyerned by any statutory rule and
A co11\in!l()US officiation in l!w p9st sh9uld be the basis,

l11 Hie appe3I by spec!lll leave before thjs Co!lrt it was arn!led by
the appellants that sjnce the Co111mission regularise!I t!te services 0f all
Execuiive Engineers wit(\ effect from a co111111on d?te, the intrr se
B seniority in t(\e (Qwer ~<!<!re should be the Pf\lper b.asjs ill t(\e ltigher
caljre also, On ll!e con!rnrr the respo111!ent l'l\e~u.tive !'11gi11eHs con-
te11de!l !bat tile qmtil!YPI!~ officj3tio11 ill t1te f!Ost till regl!!aris~\io'!
should Ile the basis for determjning \tie seniority, Tf1e appliq1bility of
tl'!e Qell!i M1111iciP'!l {:orporntio11 Sffvice Regll!atioll 1959 to the
emP!l!nes llf !!le !-iildert!l1'i!!~ w;is also qµestio11e~:

Oismi~ing the appe~!. tpjs C 0µrt,

llELD: (I) The Servife Reg11Iatio11 t959 iipplies only to ttiose whQ
were Plli!l ()ut pf !(;~llHa! Accomit' an<! it has Ill! appjiq1tiol1 t() !he
categijry !>f o,fficers (If !lie '!llPellant !,.inder\aking as the salary {!f !IJe
D employees ill the !Jnderta(\ing. is paid 0ut oft.he account of the {)pder-
takil)g am! !lo! lil>m the '(;epel"l!I Account' of the Mul!icipal Fl!Dd. (639E-F]

(~) h1 !lie absenre of any rule or order the length !'f service sfwu.!<!
be the 1!11* !g !leter111i11e the seniority, [§46C]

E (3) Tl'!e j11dg111eilts of {:ourts or observations made there 0n are
pot to be read ~s statutes. They are 111ade in the setting of facts o!>tiiined
iµ ll PllftiCl!lar case, [6430]

Tl'!e pr!P.cip!e Qf countiqg servjce in favour of one shoµld not be
vio!3tiv~ !lf egy;i!ity !!f opportupity enshriqed in Articl~s 14 an<l 16 <!f
F the {:()qstitµ!iPll 1 If a4 ho( al!Pointment or te!DpQrary ~Pl!OilJt!llfnt js
IJl!!de withput cgnsi<lering !he. claims of s~niors in !he cadre, t1w sHvice
Fe11dered in s11~h !IPPoi11t!l1el1! slml!!d l10t be cgunted fQr seniority in the
c11!lre. T!te !e!lg!!t of service in ad hoc ;ippojntme!lt or stop-gap a!'ra!lge-
llle!!t Il1ade in tile exigeqcies Of service WltbO!!t cpnsjdefi!lg the cl~jllJS Of
alf !!te eligible a!!!l s!!i!;ible persoqs iP. t!te cac!re l)ught not be rJ!ckoned
G f!lf tile l!urpose l)f deter111ining the seniority in the promotional cadre.
TP give tile llenefit of sµ~!t !!!'fvjce (o a favoured few would be contrnry
to tile equality of opl!!!rhmity enshrined in Articles 14 and ljj of tile
{:Qnsfitutjon. ]Jut jf !he claims pf an eligi!!le ~andidates were considered
~! Ille !ime pf qd hor l!PP!!i!ltlllen!s am! S!W!t !'PPO!!!t!llel1ts rnIJ!i•mei!
•minlerrnp!e<llY !ii! !!le ·r~g!o'!!!ri~atim1 of servi~~.- ~Y the Pell!'ftll1e!lt?.!
H J!rPm!lli!!n \:om!lli!!e' P.r iJJe P11b!ic Service !=11111111issiQn !Ji•re i• 1w
WATER SUPPLY COMMITTEE v. R:l(. KASHYAP (SHETTY, J.J 635
-;:

rea.son to exclude su.ch. service for determining th.e s•lliQrity, Q{ cq11rse,
if afly statqtory rule or exec11Hve ord.er pr9vid.es 19 tlle cQntrnu, ttw
A
rule or order will have sul'remacy, [(i45Q-ll; ~4f1A,C] ·

Baleshwar Dass & Ors. etc. v. State of U.P., [198l] 1 S.CR 449 ~t
469; A. Janardhan v. Union of India, AIR 1983 SC 769 = 1983 2 SCR
936; G.P. Dova/ v. Chief Sec;retary, Government of U.P. ~Ors . , [1985]
1 SCR 70; G . S. Lamba v. Union of India, [198$] 3 SCR, 431; G.C.
Gupta v. N.K. Pa1J.4.ey, [1988] 1 SCC 316; N.K. Chauhan v. S(a(e qf
Gujarat, [1977] 1SCR,1037; S.B. Patwar(ihan v, State of Maharash(ra,
[1977] 3 SCR, 775, referred. to.

Ash.ok Gulati and Ors. v. B.S. /ai11 «nd Ors., AIR 1~87 SC '\24;
[)r. s.D. Choudhury v. State of Assam [1976] I SCC 283,
d.istingqislled,.

Vasan( Kumar Jaiswal v. Sta(e of M.P., [1987] 4 SCC 450, relie!l
011.
D
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 527
& 528 of 1986.

From the Judgment and. Orcier dated 12. 7. 1985 of the Delhi High
Court in L.P .A. No. 8 of 1978.
E
G.L. Sanghi, K;.C. D\rn, S.j(, Jv!ehta, Dhruy Melita, s.M. Sarin
and R.J. Goµl3y for tht:l Appel!an\s.

V.M. T~rk\lnQe, (N.p.) £.(::. Ag!!rw;;l, All!! SlJarm11 all\! V\jay '
Pandita for tl:ie Resp\lncte!lJs. ·
f

JAQANN'ATttA sf!Ji:TTY, J, Th@§~ !WQ af)p@als \ly le;;ve are
from t!leJu\!gment pf !lw Pe!hi Hi!lh C!P\lrt !'i!!te!l Ii J11ly, !Qa~ in k.r.
No. 8 of 1978.
Ci
Tl.w' first appellm;it in th@ first app~al is th~ P~lhi Wll!~• ~11pp!y
and S~w!\g~ Qisppsfll l.J!ldefl!\kin!l (the '"!Jndert!\ki11~") The !\pjl~J,
lants i11 the next !\ppe!\) are spme of \he Execu.\ive En.giIJe~rs ill the
l.Jndertaking. The ~ommon 9~se pf the f!Pllell&nts is th~t !he inl~M~
seniority in the citdre of El!'.ecuiive Engi11eers lifter their r~gµJ~ris!\tion
should reflect the correspo!lciing r~rikin~s in \he f~e4iri~ ~~!.Ire of H
636 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

Assistant Engineers. But the contesting respondents who are also
A
Executive Engineers contend to the contrary. There case is that the
continuous officiation in the post till regularisation should be the basis
for determining the seniority. These rival contentions are required to
be decided in the appeals.

B The facts leading to the appeals are not in dispute and may
briefly be stated thus:

The Municipal administration of the Union Territory of Delhi is
governed by an Act called the Delhi Municipal Corporation Act (the
"Act"). The Act came into force on 7 April, 1958. Section 92 of the act
provides power to the Undertaking to appoint certain categories of
c officers. But that power is not absolute. No appointment to any cate-
gory of 'A' post shall be made except after consultation with the Union
Public Service Commission (the "Commission"). That is the constraint
in section 9. Such consultation, however, is not required if the appoint-
ment is for a period not exceeding one year, or to such ministerial
D posts as may be specified in consultation with the Commission. The
consultation with the Commission is required to be made in accor-
dance with the regulation framed under Section 97. The Regulation
fram..ed by the Commission has a long title called "The Union Public
Service Commission (Consultation) by Delhi Municipal Corporation
Regulation 1959". It provides procedure for promotion as well as direct
E recruitment of officers in the Corporation.

Section 98 confers power to the Corporation to make regulations
with regard to conditions of service of officers and other employees
appointed by the Corporation and other incidental matters. Section
480(2) states that no Regulation made by the Corporation shall have
F effect until it has been approved by the Central Government and
published in the Official Gazette. Section 480( 1) gives interim power
to the Central Government to make regulation which the Corporation
could have made under Section 98. In exercise of the power under
Section.480(1) the Central Government has framed what is termed as
the Delhi Municipal Corporation Service Regulation 1959.
G
. In 1964 four additional posts of Executive Engineers were
created in the Undertaking. The Commissioner after considering the
/ eligibility and suitability of the Assistant Engineers then available in
the Undertaking recommended three names: J.P. Gupta, Mahbood
Hussain and R.K. Kashyap for being appointed as Executive
H Engineers. He also intimated that there was nothing in record against
WATER SUPPLY COMMITTEE v. R.K. KASHYAP [SHETTY, J.[ 637

those officers. On 17 April, 1964 they were appointed as Executive
A
Engineers for a period of one year or till the posts are filled up in
consultation with the Commission. These are respondents 1 to 3 in
C.A.No. 527/86. Shri S.S. Ramrakhyani (Respondent-4) and P.T.
Gurnani (Respondent-6) were not then in the Undertaking. They were
working as Assistant Engineers in the general wing of the Corpora-
tion. It appears they were selected as Executive Engineers in the B
Undertaking on 9 April, 1965. They reported as Executive Engineers in
the Undertaking on 12 April, 1965 after they were relied from the
general wing of the Corporation. They were also appointed for one
year in the first instance. On 5 February, 1969 their lien ;as cancelled
in the general wing. They were, however, given the benefit of their
service rendered as Assistant Engineers for all purposes. The other
respondents were also appointed on ad hoc basis on like terms on
c
different dates. S. Parkash respondent No. 5 was appointed on 21
August 1965. A.V. Panat respondent No. 7 was appointed on 21
December 1965. Respondents Nos. 10 and 11 in 1966, respondent 12 in
1967 and respondents 8 and 9 were appointed in 1969. They worked
continuously in their respective posts till their services were D
regularised by the Commission. The Commission regularised their
services with etfect from 8 January 1971.

The list of names of officers whose services were regularised by
the Commission evidently did not reflect their inter-se seniority in the
cadre. The Commissioner, therefore, was asked to prepare their E
seniority list. But there is nothing on record to indicate that the
Commissioner did anything of the kind. He, however, appears to have
followed the seniority in the cadre of Assistant Engineers for the
purpose of posting the Executive· Engineers on current duty charge of
the post of Sup.erintendent Engineers. Some of the officers thereupon
moved the High Court with Writ Petition No. 237 /1973 seeking a F
direction to the Undertaking to prepare a proper seniority list of
Executive Engineers. The High Court accepted the Writ Petition and
directed the Undertaking to prepare a seniority list of Executive
Engineers (Civil).

Accordingly, the Undertaking prepared a seniority list. The G
services rendered on ad hoc appointments were excluded for the
purpose. The seniority was determined reflecting the respective rank-
ings in the feeding cadre.

The aggrieved officials challenged the validity of that seniority
list before the Delhi High Court in C.W. No. 1339 of 1973. The H
'638 SUPREME COURT REPORTS ii988] Supp. 3 S.C.R.

A learned 'sin~le judge Mfore whom the Writ PetHioh came for ·disposal
dislliissed the same. He held tha't Rule 6 of the Delhi Administration
Sertiotity Rules 1965 would govern the determination of seniority of
!lie officers. He also held that that seniority should be in the order of
tegulatisation and not on lhe basis of original 'lid hoc appointments.
But tile Division Bench upon appeal took a different view. The
B learned judges Jreld that the determination of seniority of officers is
not g·ovetned by any statutory rule and ·continuous officiation in the
post should be the basis. to be mote specific, the learned judges
observed:

"The hOrmai rule is that seniority is governed by the period
of continuous officiating service in the absence of any other
c seniority rule. The period of continuous officiating in the
case of .\he present petitioners will, therefore, be the
governing .principle."

xx xx xx .XXXxi<XX xxxxxx
b
"The reason we have found is that the delay in mak-
ing recruitment rules and making regular appointment in
accordance with the procedure envisages by the Act really
bee.ii the result of a conflict between the Corporation and
I
the Union Public Service Commission. In the result, for !
E years on, the persons have continued on an ad hoc basis.
This ha:s hap·pe·ned even in cases where the appointment
was not on ad hoc basis initially. In such cases, the period
of continuous ad hoc service cannot be treated as a stop gap
arrangement. This is, it\fact a regular appointment, which
is held iil abeyance because the recruitment rules were not
F seftled and the procedure not finalised. These appoint-
JIBI
ments have eventually been teguiarised after the recruit-
ment foies had been settled and the ·procedure laid down."'

The cottecrness of the view taken by the High Court has been
'chailenged in tl'.t'ese appeals.

We have heard the counsel on both sides and examined the
va!i6us <:onteiltions carefully. The first question for consideration is
whether the Delhi Municipal Corporation Service Regulation 1959 is
applicable to •employees of the Undertaking. As earlier ·noticed, the
Regulation was framed by the Government of India under Section
ifil 480( l~ 'Ohhe A.::t. 'Regulation 3 :pro'vides:
- ~· .~"~
• '->'!';.,

r,.

WATER SUPPLY COMMITIBE v. R.K. KASHYAP [SHETfY, J.J 639
•
"3. Unless otherwise provided in the Act or these
A
.regulations, these regulations shall apply to all Municipal
Officers and other Municipal employees whose pay is
chargeable to the "General Account" of the Municipal
Fund;

Provided that nothing irt these regulations shall appiy
to such Municipal Officers and other municipal employees
as are appointed under any contract or render jlart-tirrte
service or ate in receipt of daily wages.''

As is obvious significantly from Regulation 3; the regulations
shall apply only to Municipal Officers and other Municipal employees C
whose pay is chargeable to the "General Account" of the Municipal
Fund. Section 99 of the Act provides for establishment tif the "Munici-
pal Ftiiid;,. It consists of three different accounts:

(i) Electric Supply Accounr;
b
(ii) Water Supply and S~wage DispoJj Accounts; and

(iii) General Account ..

General Account is only one of the three accounts. The Under-
taking has a separate account of its own. It is called "Water Supply and E
Sewage Disposal Accounts". It is said that the income and expenditure
or the accounts of the Undertaking is separate from and iil<lependent
of the "General Account" of the Municipal Fund. 0.P. Kali<lar Deputy
Commissioner (Water) iil his affidavit filed in C.~. No. 527/1986 has
also expressly stated so. The salary of the employees in the Undertak-
ihg is paid otit of the account of the Undertaking (Ind not from the F ·
"General Account" of the Municipal fund.· t'b.e Service Regulation
1959 do ·llot apply to those \vho are paid out of other accounts. It
applies only to those who are paid out of "General Account'.

In 'view of the stil'i1d takeil by the undertaking and also in the
light of the said provisions of the Act it must be held that the Service @
RegulatiO"ll 1959 has no application to the category of officers with
'whom we are concerned in these appeals.

It was, however, argued for the appellants that the ·office
memorandu·m of the Home Ministry of the Government of India dated
22 J)ecefuber, 1959 could be called info ·aid Ipt the puijlose of de; ff
640 SUPREME COURT REPORTS
. (1988] Supp. 3 S.C.R.

A tennining the seniority of officers in the Undertaking. Reference was
m<1de to General Principle 5(i) with the Explanawry memorandum
thereunder which directs that where promotion is made on the basis
of selection by Departmental Promotion Committee, the seniority of
such promotees shall be in the order in which they are recommended
for such promotion by the Committee. But there is hardly any sub-
a stance in this contention too. It is basically faulty. The office
memorandum proprio vigore does not apply to employees of the
Undertaking. It could be applied if it could fall within the scope of
"Rules" as defined in Regulation 1959. Since Service Regulation 1959
itself is not attracted to employees of the Undertaking it would be
futile to contend that the office memorandum would govern their
seniority.
c
; The real question to be considered is what should happen to the
valuable service rendered by officers in ad hoc appointments? Should
it be excluded altogether while determining their seniority? If not,
what should be the method to be employed in the absence of any rule
D or order providing for any procedure. It was argued that since the
Commission regularised the services of all Executive Engineers with
effect from a common date i.e. 8 January, 1971, the inter-se seni9rity in
the lower cadre should be the proper basis in the higher cadre also. As
otherwise, it was urged that a senior in the lower cadre might be junior
in the higher cadre which would be contrary to all concepts in .service
E jurisprudence. In this context, we were referred to a large number of
authorities on either side. Most of the authorities involved the ques-
tion of applicability of the quota rule linked up with the seniority of
direct recrmts and prnmotees. We are not concerned with that ques.-
tion. We may, however, refer to some of the decisions which have
some bearing on the question before us:
F
In Baleshwar Dass & Ors. etc. v. State of U.P., [1981] 1SCR449
at 469 Krishna Iyer, J., had this say:

"If a public servant services for a decade with distinc-
tion in a post known to be not a casual vacancy but a
G regular post, experimentally or otherwise kept as tem-
porary under the time honoured classification, can it be
that his long officiation turns to ashes like a Dead Sea fruit
because of a label and his counterpart equal in all func-
tional respects but with ten years less of service steals a
march over him because his recruitment is to a temporary
H vacancy? We cannot anathematize officiation unless there
WATER SUPPLY COMMITTEE v. R.K. KASHYAP [SHETTY. J.I 641

are reasonable differentiations and limitations.··
A
xxxxx xxxxx xXxxx
xxxxxxxxxx

"The normal rule consistent with equity is that officiating
service' even before •corifirinatior\ ir\ service has relevancy a
to seniority if eVentually nb infirmities in the way of confir-
mation exists. We see iioH\l11g hi ihe scheme of the Ruie5
confrary to that prindple. therefore, the point from which
service has to be counted is \he commencement of the
officiating serVice ol il\e Assistant Engineers wh·o might not
have secured permanent appoin\hieilts in the beginning 'C
and in that sense. ·may siill be temporary, but who, for ali
other purposes, haVe been regularised anti are fit to be
absorbed into permanent .posts as and when they are
vacant."

In A. Janardhan v. Union rif India, AIR 1983 SC 769 = 1983 2 I:)
SCR 936 D.A. Desai, J.; said (At 960):

"It is a weii recognised prilkiple of service jurisprudence
that any rule di seniOHty has to satisfy the test of equality of
opportut\iiy in ~\lblic service as enshrined in Articie 16. lt
is an equally weti recognised canon of service jurisprudente E.
that in the absetice bf ahy other valid rule for determining
inter-se seniority of members belonging to the same
servite, ihe rule continuous officiation or the length of
service tlr the daie bf entering iti servie and cbntinuotls
uninterrtipteti service thereafter wouid be valid and wouirl
satisfy the tes!S of A.hide i6." F
In G.P. Doval v. Chief Secretary, Gove;nment of U.i'. & Ors.,
[ 1985) 1 SCR 70 besai, J., following Baleshwar Dass reiterated (a\
85-87):

"Now if there was no binding rule of seniority it is b
well-settled that length of continuous officiation prescribes
a valid principle of setiibrity. The question is ftbili what
date the service is to be reckoned? Ii was urged HiiH tlhy
appciinirlleni of a stop·ga~ nature or pending the seietlion
by Public Service tottimissibtl bihilb\ be taken initi accoUhi
for reckoning seniority. iti other words, it Was urged tha\ \o IA
642 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

be in the cadre and to enjoy place .in the seniority list, the
A
service rendered in a substantive capacity can alone be
taken into consideration. We find it difficult to accept this
bald and wide submission. Each case will depend upon. its
facts and circumstances. If a stop-gap appointment is made
and the appointee appears before the Public Service Com-
B mission when the latter proceeds to select the candidates
and is selected, we see no justification for ignoring his past
service. At any rate, there is no justification for two
persons selected in the same manner being differently
treated. That becomes crystal clear from the place assigned
in the seniority list to petitioner No. 1 in relation to respon-
dent No. 7. In fact if once a person appointed in a stop-gap
c arrangement is confirmed in his post by proper selection,
his past service has .to be given credit and he has to be
assigned senioriiy accordingly unless a rule to the contrary
is made. That has not been done in the case of all the
petitioners. The error is apparent in the case of petitioner I
D and respondent No. 7. These errors can be multiplied but
we consider it unnecessary to do so. In fact a fair rule of
seniority should ordinarily take into account the past
service if the stop-gap arrangement is followed by confir-
mation. This view which we are taking is borne out by the
decision of this Court in Baleshwar Dass and Ors. etc. v.
E Siate of U.P. and Ors. etc.

xxxxx xxxxx xxxxx
xxxxxxxxxx

lt is thus well-settled that where officiating appointment is
F 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
deterll\ining the iplace in the seniority list."

Again in G.S. Lamba v. Union of India, (1985] 3 SCk 431 Desai,
G J., likewise commented (at 459-60):

"In the absence of any other valid principle of seniority it is
well established that the continuous officiation in the
cadre, grade of servjce will provide a valid principle of
seniority. The seniority fats having not been prepared on
H this.principle are liable to be"quashed and set aside."
WATER SUPPLY COMMITTEE v. R.K. KASHYAP [SHETTY, J.] 643

Counsel for appellants,. however, placed strong reliance on the A
decision in Ashok Gulati and Ors. v. B.S. Jain and Ors., AIR 1987 SC
424 and in particular the following observations of Sen, J., (at 438):

"That In the absence of any other valid principle of
seniority, the inter-se seniority between direct recruits and
promotees should as far as possible be determined by the B
length of continuous service whether temporary or per-
manent in a. particular grade or post (tqis should exclude
periods for which an appointment is held in a purely stop-
gap or fortuitous arragnement). No doubt, there are cer·
tain observations in the two cases of G.P. Doval AIR 1984
SC· 1527 and Narender Chadha, AIR 1986 SC 638 which
seems to run counter to the view we have taken, but these
c
decisions tutned on their own peculiar facts and are there-
fore clearly distitiguishable and they do not lay down any
rule of universal application."

We do not consider that this observation is of any assistance to D
the appellants in this case. It must be read in.the context in which it
appears and against the background of the facts of that case. It has
been said more often and we repeat here that the judgments of Courts
or observations made thereon are not to be read· as statutes. They are
made in the setting of facts obtained in a particular case. It is no
exception in Ashok Gulati case. There this Court was concerned with E
the service rendered by certain officers in a purely stop-gap or for-
tuitous arrangement. In the Public Works Department of the State of
Haryana, certain persons were appointed as temporarily engineers (ad
hoc) for a period of six months. Some of them were drawn from the
Employment Exchange. The appointment was not made in accordance
with the cadre rules of the department. In the order of appointment F
given to each individual it was specified that their appointment was
purely on ad hoc basis on a fixed salary of Rs.400 + allowances. It was
also notified that their services would be terminable without notice. It
was further stated that the service rendered would not enure to their
benefit under the cadre rules. Later on, those µ'lsts were advertised by
the Public Service Commission for regular recruitment. Some of those G
persons applied and were also selected. They were appointed regularly
in the cadre. Then they claitued that their antecedent service in the ad
hoc appointment should be taken into consideration for determining
their seniority. This Court said "No." The reason was obvious. The
terms of their ad hoc appointment did not allow them any benefit
therefrom. It was a stop-gap arrangement contrary to the cadre rules. H
644 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

A They were, therefore, not entitled to count that service for determin·
ing the seniority. If it were allowed to them, it would have impaired
the rights of persons ranked above them in the merit list of the Public
Service Commission. It was in that context, the learned Judge made
the aforesaid observation. It was not intended to be a discordant note
1·: against the normal rule of determining seniority as laid down in
B Baleshwar Dass case. In fact, the learned judge.in a later decision in
G.C. Gupta v. N.K. Pandey, [1988] I SCC 316 has approved the rule
laid down (i) in Baleshwar Dass V. State of U.P, (ii) N.K. Chauhan v.
State of Gujarat, (1977] I SCR 1037 and (iii) S.B. Patwurdhan v. Staie
of Maharashtra, [1977] 3 SCR 775. It has been consistently held in
these cases that in the absence of seniority rule, the ·c6iltiiiiiOUs offida'
tion ih the post should be the guiding factor for determining tile
t seniority.

In a more recent decision in V/lSant Kumar Jaiswal v. State of
M.P., [1987] 4 SCC 450 Sabyasachi Mukherji, J., has also reiterated
the same principle. The learned Judge said that in the absenee of aily
D statutory rule or executive memorandum or order for determination of
seniority in a grade, the normal rule would be to determine the senio·
rity on the basis of length in service.

Our attention was drawn to the decision of this Court in Dr. S.D.
Choudhury v. State of Assam, [1976] 1 sec 283 in support of the
contention that the· order in which the Commission regularised the
services of the Engineers should be the basis for determining their
seniority. In that case the appellants and respondent Nos. 4 to 6 were
initially appointed as Assistant Professors under Regulation 3(e) of the
Assam Public Service Commission Regulations on an officiating basis.
It was obligatory, in tertns of that Regulation to consult the Service
F Commission, as soon as possible. Their services were eventually
regularised by ille Service Commission in one batch and their inter·se
seniority list was fixed on tlie recommendations of the Commission.
The Commission recommended that it should be fixed as per the
instructions of the Government under notification dated February 5,
1964. That notification provided among others that if the. appoint,
ments of a number of persons are regularised in one batch then the
inter-se seniority of those persons should be according to the merit list
of.the Service Commission. Even if the Service Commission does not
give any merit list the appointing authority should request the Service
Commi~sion to indicate the order of preference of those persons. Ac'
cordingly, the inter-se seniority of the persons were fixed after consult-
ing the Commission and in accordance With the rankings assigned to

,~-
WATER SUPPLY COMMITIEE v. R.K. KASHYAP [SHETIY, J.) 645

them in the merit list of the Commission. The High Court said that the
A
seniority list was correctly prepared. This Court dismissed the appeal
against the judgment of the High Court. In the course of the judg-
ments, this Court observed (at p. 285):

"5. It is not in dispute that the appellants and respon-
dents Nos. 4, 5 and 6 were initially appointed Assistant B
Professors under Regulation 3(e) of the Regulations, on an
officiating basis to avoid delay, and it was obligatory, in
terms of that regulation, to consult the Service Commission
as soon as possible. The appointments were thus defeasi-
ble, and could not give rise to any legal right in favour of
the parties. It is therefore futile to contend that as the
appellants joined as Assistant Professors on an earlier date,
c
they were entitled to rank senior to respondents Nos. 4, 5
and 6 irrespective of the result of the final recruitment
through the Service Commission."

This Court could not have taken into consideration the officiating D
service of the persons there1n-in view of the Government notification
dated February 5, 1964 which specifically provided the principles for
determining the seniority of-persons whose services were regularised
by the Service Commission. Since all of them were regularised in one
batch after reference to the Service Commission their inter-se seniority
had to be determined according to the merit list of the Commission. E
The decision as to seniority in that case, therefore, rested on the
specific notification of the Government.

We may also mention that in regard to officers of Delhi Munici-
pal Corporation where there was ad hoc appointments followed by
regularisation of service, the Delhi High Court has taken a consistent F
view that such persons should get their service in the ad hoc appoint-
ment for determining seniority in the absence of any specific rule to
the contrary. (See Municipal Corporation of Delhi v. K.K. Bhatia,
AIR 1986 (LAB) LC. 1489 at 1492.

So much as regards to general principle governing seniority in G
service jurisprudence. There is, however, one other important and
fundamental principle which should not be forgotten in any .case. The
principle of counting service in favour one should not be violative of
equality of opportunity enshrined in Article 14 and 16 of the Constitu-
tion. If ad hoc appointment or temporary appointment is made with-
out considering the daims of seniors in the cadre, the service rendered H
646 SUPREMRCOURT REPORTS [19881 Supp. 3 S.C.R.

in such appointment should not be counted for seniority in the ca<,lre.
A
The length of service in ad hoc appointment or stop-gap arrangement
made in the exigencies of service·without considering the claims of all
the eligible and suitable persons in the cadre ought not be reckoned for
the purpose of determining \he seniority in the promotional cadre. To
give the benefit of such service to a favoured few would be contrary to
B the equality of opportunity enshrined in Article 14 and 16 of the Con-
stitution. But if the claims of all eligible candidates were considered at
the time of ad hoc appointments and such appointments continued
uninterruptedly till the regularisation of services by the Departmental
Promotion Committee or the Public Service Commission there is no
reason to exclude such service for determining the seniority. Of
course, if any statutory rule or executive or.der provides to the con-
c trary, ,the rufe or order will have supremacy. In the absence of any rule
or order the lengt)l of seivice should be the basis to determine the
seniority. ·

This takes us to the last contention urged for the appellants in
D Appeal No. 52~/1986. The learned counsel trie<.I to impeach the
method by which the ad hoc appointments were made and in particular
the ad hoc appointment of &.)<. Kashyap-responf.i¢nt No. 3. It was
urged that on the date on which he was posted as Executive Engineer
he Jid not have the required experience of five years in the· Undertak-
ing. It was made good by taking into consideration his past service in
E other establishment before be joined the Undertaking. The Undertak-
ing then had no cadre rules of its own providing for such requirements.
It was, therefore\, argued that it was wrong on the part of the Under-
takings to have counted pis past "service before. he joined the Under-
taking to ma\<e good the deficiency in his service. lt i& true that on the
date on which respondent 3, apd some others were initially considered
F and appointed as Executive Engineers, the Undertal\:iqg had no cadre
rules of its own. It however, followed the cadre n1les of the general
wing of.the Corporation. That cadre rules provideq for counting such
past service. In our judgment, there was nothing wrong in following
that cadre rules pending approval of itS own cadre rules. Those cadre
rules were uniformly applied to all the then available candidates for
G considering them for .arl. hoc appointment. The Undertaking made no
discrimination. There is indeed no dispute on this aspect. Before the
High Court, (t was a common case of parties that ad hoc appointment
was necessary pending finalisation of the cadre rules and approval by
the Commission. It was also a common case of parties that for the
purpose of making ad hoc arrangements, the suitability of all the eligi-
H ble ·officers was considered. Moreover, the Undertaking was repea-
WATER SUPPLY COMMITTEE v. R.K. KASHYAP [SHETTY, J.] 647

tedly requesting the Commission to regularise the appointments by A
convening meeting of the Departmental Promotion Committee. It is,
therefore, not proper to find fault with those ad hoc appointments at
this stage.

" From the foregoing discussions and in the light of the decisions to
B
which we have called attention, we have no hesitation in holding that
the conclusion reached by learned judges of the Division Bench of the
Delhi High Court is correct and does not caij for any interference.

In the result, these appeals fail and are dismissed, but no order as
to costs.
c
R.P.D. Appeals dismissed.