SANTOSH KUMAR AND ORS.versusG.R. CHAWLA AND ORS.

                     SANTOSH KUMAR AND ORS.                                A
                                v.
                       G.R. CHAWLA AND ORS.

                        SEPTEMBER 10, 2003

          [M.B. SHAH AND DR. AR. LAKSHMANAN, JJ.]                          B
     Service Law :

     U.P. Regularisation of Ad hoc Appointments (for posts within the
purview of the PSC) Rules, 1979: Rules 4 and 7.
                                                                           c
     Inspector of Drugs-Direct recruit Inspectors and regularised
Inspectors-Inter-se seniority between-Public Service Commission sent
recommendations to State Government giving a list ofcandidates including
ad hoc drug inspectors-However, direct recruits appointed prior to
regularisation of ad hoc Drug Inspectors-Held: The ad hoc drug D
inspectors who were regularised subsequent to the appointment of direct
recruits are not entitled to claim seniority over direct recruits on the basis
of continuous officiation-UP. Inspector ofDrugs (Services) Rules, 1980.

      The appellants were temporarily appointed as Inspectors of E
Drugs on ad hoc basis purely on stopgap arrangements. Subsequently,
an advertisement for direct recruitment for the post of Inspector of
Drugs was issued by the State Public Service Commission (PSC) under
U.P. Inspector of Drugs (Services) Rules, 1980. The State PSC sent its
recommendation to the State Government giving a list of candidates
in order of merit, which also included the appellants. However, the F
appellants found their names in the said merit list below the respondents-
direct recruits. The appellants, therefore, persuaded the State
Government to initiate their regularisation under the U.P.
Regularisation of ad hoc Appointments (for posts within the purview
of the PSC) Rules, 1979. However, the direct recruits were appointed G
as Inspectors of Drugs prior to the regularisation and appointment of
the appellants. Subsequently, the State Government issued a seniority
list in which the appellants were allowed to steal a march over the
respondents who became members of the service prior to the appellan\:s.
The respondents filed a writ petition before the High Court challenging H
                                    561
                                                                                •

    562                  SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A the said seniority list, which was allowed. Hence this appeal.
         On behalf of the appellants, it was contended that the entire
    length of service of the appellants was entitled to be considered for the
    purpose of seniority; and that the ad hoc appointments must be treated
B   as substantive appointments for the purpose of seniority.

          Dismissing the appeal, the Court

          HELD : 1.1. The appellants/writ petitioners who are ad hoc
    appointees are not entitled to claim seniority on the basis of continuous
C   officiation. (563-F]

        Direct Recruit Class II Engineering Officers' Association v. State of
    Maharashtra, (1990) 2 SCC 715, referred to.

D        1.2. The respondents-direct recruits were appointed prior to the
    regularisation of the services of the appellants and, therefore, the
    appellants are not entitled to be regularised prior to the appointment/
    confirmation of the respondents under Rule 4 of the U.P. Regularisation
    of Ad hoc Appointments (for posts within the purview of the PSC)
    Rules, 1979. [567-G-H)
E
        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11961-
    11963 of 1996.

          From the Judgment and Order dated 6.5.94 of the Allahabad High
p Court in W.P. Nos. 1897/80, 731/91 and 309 of 1994.
                                     WITH

          C.A. Nos. 11964 and 11965 of 1996.

G        Bhaskar P. Gupta, Dr. Sumant Bharadwaj, Ms. Mridula Ray Bharadwaj,
    Vivek Vishnoi, Punit Dutt Tyagi, Vinay Garg, Ms. Deepam Garg, Prakash
    Singh, Ashok K. Srivastava, J.M. Sharma (NP), Shrish Kumar Mishra and
    Irshad Ahmed (NP) for the appearing parties.

H         The Judgment of the Court was delivered by
        SANTOSH KUMAR v. G.R. CHAWLA [LAKSHMANAN, J.)                 563

     DR. AR. LAKSHMANAN, J. : The questions involved in these A
appeals are identical and they are being disposed of by this common
judgment.

      These appeals are directed against the common judgment dated
06.05.1994 passed by the High Court of Judicature at Allahabad in Writ B
Petition Nos. 731of1991, 2:il of 1994, 309of1994, 1897 of 1980 and
1663 of 199!.

     The facts, in short, are as follows:-

      According to the appellants, they were eligible for appointment to the C
posts in question and the appointments were made on the basis of selection
made pursuant to the public advertisement and after considering claims of
all eligible candidates. In these circumstances, it was submitted that the
entire length of service of the appellants is entitled to be considered for
the purpose of seniority as held by the Constitution Bench of this Court D
in the case of Direct Recruit Class II Engineering Officers' Associations
v. State of Maharashtra and Ors., [1990] 2 SCC 715. However, the High
Court held that ad hoc services cannot be counted for the purpose of
seniority. It was further submitted that if the ad hoc appointment is made
after satisfying all tests for regular appointment and after considering the
claims of all eligible candidates, these appointments must be treated as E
substantive appointments for the purpose of seniority and that the High
Court fell in error in excluding such period from seniority.

      The High Court pronounced the impugned judgment whereby it was
held that the appellants/writ petitioners who are ad hoc appointees are not p
entitled to claim seniority on the basis of continuous officiation. It was
also held that the direct recruit appointees/respondents were, in fact,
appointed on 16.09.1982 and the corrections were made in their appointment
letters ma/a fide. The High Court also disbelieved the affidavit filed on
behalf of th'e State Government and the Director of Medical Services.
Accordingly, the High Court quashed the seniority list and directed G
preparation of fresh seniority list in accordance with the guidelines
mentioned therein.

      In most of the writ petitions, dispute of inter se seniority has been
raised. While raising dispute of seniority, the selection made by the Public H
    564                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A Service Commission (hereinafter referred to as "the PSC") was also
    challenged. In one or two of the writ petitions, recommendations of the
    PSC were accepted by the State Government. In the light of the facts and
    circumstances, the High Court held as follows:-

             "We hold that the inter se seniority of all the Inspectors of Drugs,
B
             whether promotees or direct selected by the Public Service
             Commission deserved to be determined in accordance with the
             merit prepared by the Public Service Commission. As far as those
             Drugs Inspectors who either did not appear before Public Service
             Commission or appeared but failed to be selected and whose
c            services were regularised by the State Government would be
             placed below the persons selected by Public Service Commission
             in accordance with the Rule-7 of the Regularisation Rules.

                   In view of what has been indicated herein above writ
D            petitions bearing No. 731/91 G. R. Chawla & Ors. v. State of UP.
             & Ors. and No. 251 [SB]/1994 A. K. Pandey and Ors. v. State
             of UP. & Ors. partly succeeds. A writ in the nature of Certiorari
             quashing the order dated 12-1-1991 passed by Director General,
             Medical Health and Family Welfare, Govt. of U.P. determining
E            the seniority of Inspectors of Drugs, is issued. Opposite parties
             are directed to re-determine the seniority of Inspectors of Drugs
             in the light of the observations mentioned in this order. Writ
             Petitions bearing Nos. 1897/80, 1663/91 and 309 [SB]/1994 are
             dismissed."

F         Dis-satisfied with the above judgment, the writ petitioners have come
    up on appeal to this Court and contended that the High Court has
    completely ignored the pleadings of the appellants/writ petitioners and
    failed to appreciate that the controversy was not confined to the determination
    of seniority amongst the promotees and direct recruits but pertain to the
G   appellants' claim for regularisation. Learned counsel for the appellants
    submitted that the appellants were appointed on the basis of public
    advertisement and on the recommendations of a newly constituted Selection
    Committee and after considering all the eligible candidates and that the
    appointees continued on the post uninterruptedly till regularisation in their
H   services. Jn these circumstances, it was submitted that the entire length
                                         376
        SANTOSH KUMAR v. G.R. CHAWLA [LAKSHMANAN, J.]                  565

of service of the appellants are entitled to be considered for the purpose A
of seniority. It was further argued that the appellants having been fully
qualified and appointed after facing the Selection Committee duly constituted
for the said purpose were entitled for regularisation prior to any direct
recruitments as contained in Rule 4 (I) and Rule 7 of the Regularisation
Rules. It was also submitted that the High Court has erred in reckoning B
the seniority of the respondents/direct recruits from 16/17.09.1982 which
date was specifically scored out and for valid reasons, namely, to comply
with the provisions of Rule 4(1) of the Regularization Rules. It was also
further submitted that the High Court has failed to appreciate that the
resµondents actually joined the post after 23.09.1982 only and hence they C
could not have been granted seniority from 16/17.09.1982. It was also
argued that the appellants became the members of the services from the
date of joining the post and not from the date of their regularisation vide
Government Order dated 22.09.1982. Learned counsel for the respondents,
per contra, submitted that the High Court has dealt with every aspect/
arguments led by both the parties before it in accordance with the principles D
laid down by this Court in a number of cases.

      We have perused the judgment of the High Court. Three issues were
raised before the High Court which read as under:

         I.   That the State Government has no authority to disturb the E
              merit list of the PSC and adopt the policy of pick and choose
              out of the merit list prepared by the PSC;

        2.    That the officials of the Department of Medical Health and
              Family Welfare has no authority to manipulate the records F
              in order to favour some of the candidates who have been
              regularised under the Regularisation Rules.

        3.    Even according to Rule 7 of the Regularisation Rules, the
              respondents herein were entitled to be placed above the G
              candidates who have been regularised under the
              Regularisation Rules.

      In order to appreciate the correct position, few facts as regards the
appointment through PSC with special reference to the appellants/writ
petitioners before this Court is necessarily to be stated.                  H
    566                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A           Jn the year 1979, the State Government framed the U.P. Regularisation
    of Ad hoc Appointments (for posts within the purview of the PSC) Rules,
    1979 which came into effect from 14.05.1979 and in the year 1980, the
    State Government framed U.P. Inspectors of Drugs (Services) Rules, 1980
    which provided for the direct recruitment for the post of inspector of drugs
B   through the PSC. In the year 1976, a requisition for selection of 27
    candidates on the post of Inspectors of Drug was sent by the U .P.
    Government to the UPPSC. On 14.05.1977 an advertisement was issued
    by the UPPSC for the said 27 posts in which qualifications for the
    candidates who wanted to apply was also given. In pursuance of the said
    advertisement, on 21.05.1977, the Department of Health instructed all the
C   departmental candidates to apply for their appointment against the post
    advertised by the PSC. Interviews were held in the month of December,
     1980 and the result thereof was communicated to the State of U.P. on
     14. I 0.1981. On the said date, the PSC sent its recommendation to the State
    Government giving the list of 25 candidates for appointment in order of
D   merit which included 11 candidates who were already working as Drug
     Inspectors on ad hoc basis in the department.

         On receipt of this list, in the Department in October, 1981 some of
  the candidates including the appellants/writ petitioners herein who were
E already working in the Department found their names in the merit list
  below the candidates over directly recruited and as such they persuaded
  the State Government to initiate the regularisation under the Regularisation
  Rules which had already come into force in 1979. The Director, Medical
  Health and Family Welfare, vide its order dated 16.09.1982 by means of
F a letter ordered that subject to the seniority vis-ii-vis other persons
  appointed to the post from time to time, the Department at a later date
  appointed the candidates who were direct recruits. Subsequently, on
   17 .09.1982 itself such candidates were also posted at different places. The
  candidates who are already working on ad hoc basis and had influenced
  the Department to initiate regularisation proceedings when came to know
G of such orders tried to manipulate at the lower level in the Department and
  managed to get despatch number as well as the dates scored out. Similarly,
  despatch number was scored out in many instances. Photocopies of the
  letters dated 16.09.1982 and 17.09.1982 have been marked as Annexures
  A & B. A perusal of Annexures A and B would show that the Director,
H Medical Health had issued the letter dated 16.09.1982 and Food and Drug
        SANTOSH KUMAR v. G.R. CHAWLA [LAKSHMANAN, J.]                   567

Controller issued the letter dated 17.09.1982 under their own signatures A
with the date under the signatures, these dates under the signatures could
not be changed by the officials w!lo tried to manipulate in this regard.
According to the respondents, the manipulations were done by the officials
because they could manage to get their appointment letter issued on
22.09.1982 with the despatch No. 8165 i.e. prior to the despatch No. B
mentioned in the letter dated 16.09.1982 after scoring out the same. This
letter dated 22.09.1982 has been marked as Annexure-C. On 12.01.1991,
the Department issued seniority list in which regularised drug inspectors
appointed on 22.09 .1982 were allowed to steal march over the direct
recruits who became the members of service on 16/17 .09. I 982. As already C
noticed, being aggrieved by the seniority list, the respondents herein
challenged the same before the High Court of Allahabad by filing writ
petition.

      It was argued on behalf of the regularised Drug Inspectors that their D
seniority should reckon from the date they were appointed as Drug
Inspectors and that their regularisation preceded with the appointment of
directly recruited persons and, therefore, they should be placed above in
the seniority list. It was also stated in the reply that the persons who have
been selected by the PSC did not possess the requisite qualification. At
the time of hearing, it was brought to our notice that most of the appellants/ E
writ petitioners have no locus standi to plead as their regularisation was
not in accordance with the Regularisation Rules. It was argued that
according to Regularisation Rules, only those persons who were directly
recruited on ad hoc basis before 01.01.1977 and were continuing in service
as such on the date of commencement of these Rules were entitled for F
regularisation and that appellant/writ petitioner Nos. 5, 6 and 7 did not
even qualify under this clause as they were earlier appointed on temporary
basis and after break in service they were re-appointed in 1978 and as such
they were not continuing in service on ad hoc basis before 01.01.1977. It
was also brought to our notice that as per Regularisation Rules, the G
candidates who possess requisite qualifications prescribed for regular
appointment at the time of such ad hoc appointment would be eligible for
regularisation and in the case of appellant/writ petitioner Nos. 1-4 they did
not possess the requisite qualifications at the time of their appointment as
such they were not entitled to be regularised.                                 H
    568                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A       A perusal of the judgment of the High Court would clearly go to show
  that the High Court has exhaustively dealt with all the issues and recorded
  a finding after dealing with the principles laid down by this Court in regard
  to such points/contentions. The High Court also on the issue of cutting
  and over-writing has given a definite finding on the point whether the State
B Government was justified in adopting the policy of pick and choose from
  the merit list prepared by the PSC. The High Court, after taking into
  consideration the principles laid down by this Court in a number of
  judgments, recorded a finding as follows:-

             "It is evident that although in the instant case, recommendation
c            of the Public Service Commission was advisory in nature, it was
             open for the Government either to accept the recommendation or
             decline to accept the same but if it has chosen not to accept the
             recommendation of the Commission the matter must have to he
             placed before the Legislative Assembly, but in the instant case it .
D            was not done. As stated above, some of the promotees as well
             as direct recruits, both were selected by Public Service Commission
             in order of merit. Instead of accepting the recommendation in toto,
             the State Government regularised the services of certain promotees
             and tried to allow the promotees to steal march over the direct
             recruits when inter se seniority ought to have been determined in
E
             accordance with seriatum of the merit list of the Public Service
             Commission. The contention of the State Government that as the
             process of regularisation was at advance stage, hence no direct or
             otherwise appointment could be made, unless the services of the
             persons who were already working on ad-hoc basis were regularised
F            and were given appointment orders, when Rule-7 of the U.P.
             Regularisation of Ad hoc appointment (on posts within the
             purview of Public Services Commission) Rules, 1979 clearly
             indicates that a person appointed under these rules shall be entitled
             to seniority only from the date of order of appointment after
G            selection in accordance with these rules and shall in all cases, be
              placed below the persons appointed in accordance with the
             relevant service rules, or as the case may be, the regular prescribed
             procedure, prior to the appointment of such person under these
             rules. There was no impediment in the way of the State Government
H            to have regularised services of the promoteeslad-hoc Inspectors
        SANTOSH KUMAR v. G.R. CHAWLA [LAKSHMANAN, J.)                  569

        of Drugs. But the State Government adopted a policy of pick and A
        choose, out of the list and wrongly allowed them to steal a march
        over the direct recruits in the matter of seniority which cannot be
        permitted. As according to the regularisation rules, itself, promotees/
        adhoc whose services were regularised, only deserved to be
        placed below the persons appointed in accordance with the B
        relevant service rules. The action of the State Government by
        approving the list, prepared by Commission in part and rejection
        in part was totally vitiated."

     On the point whether the appellants/writ petitioners were entitled to
the seniority from the date of their original initial appointment, the High C
Court observed as follows:-

        "In the present case rule of the seniority clearly provides that
        seniority in any category or cadre post shall be determined from
        the date of the order of substantive appointment. The posts of D
        Drug Inspectors was within the purview of Public Service
        Commission. But, ad-hoc appointments were made. The said ad-
        hoc appointments cannot be deemed to be the substant_ive
        appointments. It were in the nature of stop gap or fortuitous
        appointments, hence the period during which ad-hoc appointees E
        worked, cannot be counted for the purposes of seniority."

    Our attention was drawn to the appointment letters enclosed as
Annexure-9 at pages 152-156 of the special leave petition which would
show that the initial appointment of the appellants were on purely
temporary as stop gap arrangements.                                   F
     As regards the qualification of the respondents herein, the High Court
has recorded a finding which is quoted below:

         "In most of the writ petition, dispute of inter se seniority has been
         raised. While raising dispute of seniority, the selection made by G
         the Public Services Commission was also challenged. In one or
         two of the writ petitions, recommendations of the Public Service
         Commission were accepted by the State Government. Thus the
         appointment became final and a vested rights have been created
         in favour of those who were selected. In a proceedings for H
    570                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A            determining the validity of the seniority list, it is not open for any
             person either selected by Public Services Commission or whose
             services have been regularised to challenge the selection made by
             the Public Service Commission and the appointment made by the
             State Government by the Public Service Commission was made
             in the year 1981 and it would be unfair and unjust for this Court
B
             to declare the selection void. Hence, the third and last plea raised
             on behalf of the ad-hoclpromotees fails."

          After recording the finding, the High Court concluded that the inter
    se seniority of all the Inspectors of Drugs whether promotees or direct
C selectees by the PSC deserved to be determined in accordance with the
    merit prepared by the PSC. In this regard, the High Court has issued further
    directions with reference to Rule 7 of the Regularisation Rules.

          It was contended by learned counsel for the appellants that in view
D   of Rule 4, appellants are required to be regularised first and thereafter,
    newly appointed direct recruits are required to be appointed/confirmed.
    This contention has no force. This contention has to be negatived in view
    of the specific finding by the High Court that direct recruits were appointed
    either on 16/ 17 .09 .1982 and the services of the appellants were regularised
E   only on 22.09.1982.

         The common judgment passed by the High Court, in our view, does
    not call for any interference and all the appeals fail and are dismissed.
    However, there will be no order as to costs.

F v.s.s.                                                     Appeals dismissed.