FOOD CORPORATION OF INDIAversusTHANESWAR KALITA AND ORS. ETC.

A                        FOOD CORPORATION OF INDIA
                                           v.
                    THANESWAR KALITA AND ORS. ETC.

                                   MARCH 6, 1995

B                [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

           Service Law

           Seniority-Adhoc appointment-Appointment de hors the Rules-Con-
C tinuance on service for a long time--Regularisation-Adhoc period cannot be
     counted towards seniority.

           The respondents were appointed on adhoc basis de hors the rules.
     They continued for a long time due to non-availability of the direct recruit
     candidates. In petitions filed by the respondents, the High Court directed
D    the appellant to treat the entire period of adhoc service of the respondents
     on regular basis entitling them to seniority and other benefits. Against the
     decision of the High Court appeals were preferred in this Court.

           Allowing the appeals, this Court
E
            HELD: 1. If the appointments are not made in accordance with rules,
     though the appointees might have continued for a ling time, the entire
 ·   period of service would be fortuitous and so would not be counted towards
     seniority. The respondents were not promoted according to rules. Though
     they have continued for a long time, the entire length of service should be
F    considered as fortuitous ,and should not be counted towards their
     seniority. The High Court, therefore, was clearly in error in directing to
                                                                                       '
     treat their entire service as on regular basis. [517-E-F-518-A]

           The Direct Recruit Class II Engg. Officers' Association and Ors. v. State
G of Maharashtra, AIR (1990) SC 1607, relied on.
           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4029-30
     of 1995.

          From the Judgment and Order dated 13.5.1991 and 3.7.9_f--0f the
H    Assam High Court in C.R. No. 793/89 & 4466 of 1991.       ·
                                          516
                                              F.C.I. v. T.KALITA                           517

                        V.C. Mahajan and K.R. Nagaraja for the Appellant.                         A
     r
                        S.K. Nandy for the Respondents.

                        The following Order of the Court was delivered :

                        Leave granted.                                                            B
                         We have heard the counsel on both the sides. These appeals arise
 /
     >            from the orders of the High Court of Guwahati dated 15.5.1991 and
                  3.7.1992 in Civil Rule Nos. 793/89 & 4466/91. The ·Division Bench of the
                  High Court directed the appellants to treat the entire period of ad hoc
         ....(,
                  service of the respondents on regular basis and further declared that they
                                                                                                  c
                  must be deemed to have been in continued service as Assistant Managers
                  w.e.f. 30th August, 1973 and are entitled to seniority and also to other
                  benefits. Calling in question these orders, these appeals have been filed.
                                                                                I
                        It is not in controversy that the respondents were appointed on ad        D
     ,,           hoc basis de hors the rules. In view of the judgment of the Constitution
                  Bench of this Court in The Direct Recruit Class II Engg. Officers' Assn. and
                  Ors. v. State of Maharashtra, AIR (1990) SC 1607 and several decisions
                  following that, it is settled law that if the appointments are made according
                  to rules, though initially on ad hoc basis, and are continued for long time,
                  on regularising the service, the entire period of temporary service would       E
                  be counted for seniority. If such appointments are in excess of quota, the
                  officiating period would not be treated for seniority, as the appointments
                  then become fortuitous; and the persons appointed in excess of the quota
     ,    /       are not entitled to count the entire period of service for seniority. The
                  condition precedent being that the appointments are made within quota           F
                  and are made in accordance with rules. In other words, if the appointments
     "'(
                  were not made in accordance with rules, though the appointees might have
                  continued for a long time, the entire period of service would be fortuitous
                  and so would not be counted towards seniority.

                         In this case, admittedly, the promotion of the respondents was not in    G
                  accordance with rules; but they were delayed on ad hoc basis due to the
--..........      exigencies of non-availability of the direct candidates. Thereby, it is clear
                  that the respondents were not promoted according to rules. In other words,
                  they were promoted de hors the rules. Though they have continued for a
                  long time, the entire length of service should be considered as fortuitous      H
    518                   SUPREME COURT REPORTS                   [1995) 2 S.C.R.

A and should not be counted towards their seniority. The High Court, there-
    fore, was clearly in error in directing to treat their entire service as on
    regular basis.

        The appeals are allowed accordingly. It is needless to mention that
  from the date of the regularisation to service as per rules, the respondents
B are entitled to all the benefits. It is made clear that by the circulars issued
  by the Corporation, the pay drawn by the respondents during this period,
  stands protected. No costs.

    T.N.A.                                                     Appeals allowed.