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TMI Blog2009 (5) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/2009 @ SLP (C) No.5750/2005 Civil Appeal No. 3642/2009 @ SLP (C) No.5752/2005 Civil Appeal No. 3643/2009 @ SLP (C) No.5758/2005 Civil Appeal No. 3644/2009 @ SLP (C) No.5765/2005 Civil Appeal No. 3645/2009 @ SLP (C) No.5767/2005 Civil Appeal No. 3646/2009 @ SLP (C) No.5768/2005 Civil Appeal No. 3647/2009 @ SLP (C) No.5770/2005 Civil Appeal No. 3648/2009 @ SLP (C) No.5773/2005 Civil Appeal No. 3649/2009 @ SLP (C) No.5774/2005 Civil Appeal No. 3650/2009 @ SLP (C) No.5776/2005 Civil Appeal No. 3651/2009 @ SLP (C) No.5779/2005 Civil Appeal No. 3652/2009 @ SLP (C) No.5781/2005 Civil Appeal No. 3653/2009 @ SLP (C) No.5782/2005 Civil Appeal No. 3654/2009 @ SLP (C) No.5783/2005 Civil Appeal No. 3655/2009 @ SLP (C) No.5784/2005 Civil Appeal No. 3656/2009 @ SLP (C) No.5787/2005 Civil Appeal No. 3657/2009 @ SLP (C) No.5788/2005 Civil Appeal No. 3658/2009 @ SLP (C) No.5789/2005 Civil Appeal No. 3659/2009 @ SLP (C) No.5791/2005 Civil Appeal No. 3660/2009 @ SLP (C) No.5790/2005 Civil Appeal No. 3661/2009 @ SLP (C) No.5793/2005 ,Civil Appeal No. 3662/2009 @ SLP (C) No.5792/2005 Civil Appeal No. 3663/2009 @ SLP (C) No.5795/2005 Civil Appeal No. 3664/2009 @ SLP (C) No.5796/2005 Civil Appeal No. 36 ..... 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X X X X Extracts X X X X X X X X Extracts X X X X ..... jasthan Forest Subordinate Service Rules, 1963 (in short the `Forest Subordinate Rules'), Rajasthan Panchayat Samiti and Zila Parishad Service Rules, 1959 (in short the `Panchayat Service Rules') and the Rajasthan Secretariat Ministerial Service Rules, 1970 (in short the `Ministerial Service Rules') . 3. Stand of the appellants essentially is that the stagnation benefits are given from the date of regularization. It is submitted that this question has been decided in State of Haryana v. Haryana Veterinary AHTS Association and Anr. (2000 (8) SCC 4). It is the stand of the State that the stagnation benefits are given since chance of promotion is not there. There is no question of any regularization if the proficiency test is not passed. Circulars relied upon by the employees refer to regular service. 4. In the Notification dated 29.3.1995 paras 3, 4 and 5 are of relevance. Para 3 refers to regular service while para 4 states about 10% of benefit to 10% to all the eligible employees and para 5 is the most crucial as it relates to the benefit being given after regular appointment. Initially, the period fixed was 15 years, later it was made to three different peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary because of doubts regarding regular appointment. It is made clear that the period rendered in the existing cadre before regular employment in accordance with the relevant recruitment rules to the post is because of change of cadre the previous period is not counted so there is no question of giving the benefit to ad hoc employees and the appointment letters which were illustratively filed indicate that the appointments were till regular appointment was made. Ad hoc appointment is not made in terms of the requirements of the rules. The benefit is extended to avoid stagnation. In case of ad hoc employees, stagnation is till the regularization is made. The stress in the present case is on regular appointment to cadre/service. As rightly contended by learned counsel for the State, the High Court confused itself with appointment to post. The question of promotion arises only when appointment is a regular appointment. Appointment to the post is not relevant; on the other hand, what is relevant is the period relatable to the cadre of the service. 12. Rule 25(4) relates to prospective appointment as is clear from the expression `occurrence'. Therefore, the starting point h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, which are in Class I and Class II, it was unequivocally indicated that the revised pay scale of ₹ 3000 to ₹ 4500 can be given after completion of 5 years of regular service and ₹ 4100 to ₹ 5300 after completion of 12 years of regular service. The said Financial Commissioner had issued yet another circular dated 16-5-1990, in view of certain demands made by officers of different departments. The aforesaid circular was issued after reconsideration by the Government modifying to some extent the earlier circular of 2-6-1989, and even in this circular it was categorically indicated that so far as Engineers are concerned, they would get ₹ 3000 to 4500 after 5 years of regular and satisfactory service and selection grade in the scale of pay of ₹ 4100 to ₹ 5300, which is limited to the extent of 20% of the cadre post should be given after 12 years of regular and satisfactory service. The aforesaid two circulars are unambiguous and unequivocally indicate that a government servant would be entitled to the higher scale indicated therein only on completion of 5 years or 12 years of regular service and further the number of persons to be entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g six months in each case, without resorting to the select list prepared under Rule 9. 12. Under Rule 8 appointment to the service has to be made by way of direct recruitment strictly in the order of merit indicated by the Public Service Commission depending upon the number of vacancies available in the cadre. 14. In that case also, sub-Rule 3 of Rule 6 and sub-rule (4) of Rule 6 are of relevance. The High Court was clearly wrong in saying that the appointment was made de hors the Rules. In Ram Ganesh Tripathi and Ors. V. State of U.P. and Ors. (1997 (1) SCC 621 at para 7) it was stated as follows: 7. Rule 21-A provides for regularisation of service of ad hoc employees by treating them as persons appointed in the service on the date of their regularisation. Rule 9 provides that a person appointed under that rule shall be entitled to seniority only from the date of appointment after selection in accordance with the said Rules and shall, in all cases, be placed below the employees appointed in accordance with the procedure for direct recruitment prior to the appointment of such persons under those Rules. In view of these statutory Rules, the Government could not have treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions contained in the recruitment rules for regular appointment. 19. Although the adjective `regular' was not used before the words `appointment in the existing cadre/service' in para 3 of the G.O. dated 25.1.1992 which provided for selection pay scale the appointment mentioned there is obviously a need for regular appointment made in accordance with the Recruitment Rules. What was implicit in the said paragraph of the G.O when it refers to appointment to a cadre/service has been made explicit by the clarification dated 3.4.1993 given in respect of point No.2. The same has been incorporated in para 3 of the G.O. dated 17.2.1998. 20. Rules 23, 27 and 28 of Ministerial Service Rules read as under: 23. Appointment to the Service.-, (1) Subject to the provisions of rules 6, 6A, 6B and 6C, except in respect of the posts of Stenographers the Appointing Authority shall appoint candidates who stand highest in the order of merit in the list prepared under rule 22, provided that he is satisfied after such enquiry as may be considered necessary that such candidates are suitable in all other respects for such appointment: Provided that subject to the provisions of ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be held by the Appointing Authority shall be liable to be terminated by giving one month's notice or pay and allowances in lieu thereof, if they have served temporarily in connection with the affairs of the State for less than three years; and three months notice of pay and allowances in lieu thereof if they have served temporarily in connection with the affair of the State for more than three years. (4)Notwithstanding anything contained in rule 5, all persons working as Lower Division Clerk during the period from 8.11.1975 to 31.3.1978 on ad-hoc basis and who could not appear in or pass the competitive/qualifying examination held by the Commission as yet, shall on availability of permanent vacancies, be made permanent subject to the condition that they pass a Performance. Test conducted by the Appointing Authority in accordance with the syllabus prescribed in Part-V of Schedule-II. Such persons shall be allowed three chances to pass the said test. (5) Notwithstanding anything contained in Rule 5, all persons working as Lower Division Clerk during the period from 1.4.1978 to 31.3.1980 on ad hoc basis and who could not appear in or pass the competitive/qualifying examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided that if a person fails to pass the said test in three chances to be availed within a period of three years he shall be liable to be removed from services. (8) Notwithstanding anything contained in rule 5 handicapped persons appointed on the post of L.D.C. during the period from 1.4.80 to 31.3.88 shall on availability of permanent vacancy be made permanent by the Appointing Authority on their work being satisfactory. (9) Notwithstanding anything contained in rule 5, all persons appointed as L.D.Cs. on ad-hoc basic or on daily wage basis during the period from 1.1.85 to 31.3.90 and are still working as such on the date this amendment comes into force shall be appointed on regular basis on availability of vacancy subject to the condition that they pass a performance test conducted by the Appointing Authority within a period of three years in accordance with the provisions of the rules. Such persons shall be allowed three candidates to pass the said test to be availed within a period of three years; Provided that if a person fails to pass the said test in three chances to be availed within a period of three years, he shall be liable to be removed from services. 27. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the Recruitment Rules made a distinction between appointments made to the cadre/service in accordance with the relevant Recruitment Rules which are regular and appointments made de hors the regular Recruitment Rules which are ad hoc. 22. So far as the dismissal of some special leave petitions summarily it is made clear that, it does not affect the jurisdiction of the Supreme Court to grant special leave to appeal and allow the same. It is well settled that a decision which is per incuriam is not `law' declared in terms of Article 141 to have a binding effect. (See Prabhakar Rao v. State of A.P. (1985 Supp 2 SCR537), State of Maharashtra v. Digambar (1995 (4) SCC683), Union of India v. K.N. Sivadas (1997 (7) SCC 30), State of U.P. v. Synthetics and Chemicals Ltd. (1991 (4) SCC 139) and Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682). 23. Apart from Haryana Veterinary case (supra) the position in law as stated in State of Punjab v. Ishar Singh (2002 (10) SCC 674) and State of Punjab v. Gurdeep Kumar ( 2003 (11) SCC 732) clearly lay down that while reckoning the required length of service the period of ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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