1993 (4) TMI 304 - SC - Indian Laws

Summary

Issues Involved:
1. Fixation of seniority of ad hoc temporary Assistant Engineers vis-a-vis direct recruits.
2. Validity of ad hoc appointments and their regularisation.
3. Applicability of rules and precedents regarding seniority and regularisation.

Issue-wise Detailed Analysis:

1. Fixation of Seniority of Ad Hoc Temporary Assistant Engineers vis-a-vis Direct Recruits:
The appeals revolve around the question of seniority for Sub-Assistant Engineers who were appointed as ad hoc temporary Assistant Engineers in the P.W.D. and the Irrigation and Waterways Department of the Government of West Bengal. These ad hoc appointees sought seniority from the date of their initial ad hoc appointment, which was contested by the direct recruits who were appointed regularly according to rules. The ad hoc appointees filed writ petitions claiming seniority revision from their initial ad hoc appointment date, which were dismissed by a Single Bench but allowed by a Division Bench of the High Court.

2. Validity of Ad Hoc Appointments and Their Regularisation:
The ad hoc appointments were made without following the prescribed rules, specifically without the necessary selection by the Public Service Commission (PSC). The PSC had strongly objected to the regularisation of these ad hoc appointments, stating that "the appointments had been ab initio irregular, illegal and unconstitutional." Despite this, the State Government regularised these appointments on 26th February 1980, by dispensing with the requirement of consultation with the PSC and framing a rule under Article 309 of the Constitution, which provided for their seniority from the date of regularisation.

3. Applicability of Rules and Precedents Regarding Seniority and Regularisation:
The key rules involved were Rule 9, Rule 10, and Rule 11 of the 1959 Rules, which governed the recruitment and appointment of Assistant Engineers. Rule 11 allowed for emergency appointments but still required advertisement and interview through the PSC, which was not followed in the ad hoc appointments. The Supreme Court referred to the Constitution Bench decision in Direct Recruit Class II Engineering Officer's Association v. State of Maharashtra, which laid down that seniority can only be counted from the date of regular appointment made according to rules. The Court concluded that the ad hoc appointments were not regular and were made as a stop-gap arrangement, thus their period of service prior to regularisation could not be counted for seniority.

Conclusion:
The Supreme Court held that the claim of the ad hoc appointees for seniority from the date of their initial ad hoc appointment was untenable. The Court emphasized that the initial ad hoc appointments were not made according to rules and were intended as temporary stop-gap arrangements. Therefore, the period of ad hoc service could not be counted for seniority. The appeals were allowed, setting aside the Division Bench's judgment and restoring the Single Bench's decision dismissing the writ petitions. The Court reiterated that appointments not made according to rules cannot be considered for seniority purposes, reaffirming the principles laid down in the Maharashtra Engineers case.