# ASH OK GULA TI & ORS v. B.S. JAIN & ORS

- **Citation:** [1987] 1 S.C.R. 603
- **Court:** Supreme Court of India
- **Decided:** 1986-12-17
- **Case number:** Civil Appeal No. 149 of 1981
- **Bench:** A.P. Sen, S. Natarajan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ash-ok-gula-ti-ors-v-b-s-jain-ors-9432
- **Pages:** 28

## Headnote

Jurisdiction of High Court urtder Article 226 of the Constitution-
-+ When the impugned order itself is for a temporary period of six months
and subject to the rights of others, propriety of the issuance" of Rule Nisi
and making it absolute after years, at the instance of an aggrieved party.
A
B
c
Temporary Service on ad hoc basis-and dehors the rules, counting
.;l of,-Whether such service rendered by the Asst. Engineers would count
for the purpose• of seniority in the cadre of Asst. Engineers and also for
+ the purposes of promotion to Class I Executive Engineers-Haryana
Service of Engineers Class II Public Works Department (Irrigation
Branch) Rules, 1964 and Haryana Service -of Engineers Class I Public D
Works Department (Irrigation Branch) Rules, 1964 as amended in 1975
Rules 2(5), 6(b), 15 and22, scope of
·
·
Words and Phrases-Meaning of "Prescribed" in Rule 15
whether there was relaxation of rule-If so, whether such a relaxation is
discriminatory and violative of Articles 14and16 of the Constitution.
E
Haryana Service of Engineers, Class II, Public Works Department (Irrigation Branch) Rules relating to recruitment etc. of Asst.
Engineery and Haryana Service of Engineers Class I, Public Works
Department (Irrigation Branch) relating to Executive Engineers came
into force in 1970 and 1964 respedively. Respondent No. 2, B.L. Gupta
F
and Respondents Nos. B.S. Jain were appointed as temp0rary engineers
(ad-hoc) with effect from 19.5.1969 and 2.1.1971 respectively, the
former sponsored by the Employment Exchange and the latter with
reference to an advertisement in the newspapers. Their appointments
were de hors the said Class II Rules to meet the exigencies of service. In
the letters of appointment issued to them it was specified (i) that their G
appointment was purely on an ad-hoc basis for a period of six months
from the date of their joining the post on a fixed salary of Rs.400 plus
allowances. and their services were terminable without notiee; (ii) that
the appointment would not entitle them to any seniority or other '1enefit
under the service rules for the time being in lorce and would also not
count towards increment in their salary; (iii) that the posts of TemporH
603
604
SUPREME COURT REPORTS
[1987] l S.C.R.
A ary Engineers in Class II service would be advertised in the course by .J
the Haryana Public Service Commission and they should apply for such
• posts through the Commission, and that if they were not selected by the
Commission, their services would be liable to be. terminated without
notice; and (iv) that their inter-se seniority among the Temporary
Engineers woold be in the 0rder of merit in the list of candidates as
B settled by the Commission. The services of respondents Nos. l and 2
were however continued by the State Government from time to time, six
months at a time till the Secretary, Haryana Public Service Commission
by his letter dated July 8, 1973 addressed to the Commissioner and
Secretary to the State Government of Haryana, Public Works Department (Irrigation Branch) conveyed the approval of the Commission to
C the ad-hoc appointment of 251 Temporary Engineers beyond the period .A
of six months till regular appointments were made to the posts through
the Commission. Accordingly both these respondents continued to hold
the posts of Temporary Engineers· on. ad-hoc basis till the end of the
year 1974 i.e. till they were recruited as Asst. Engineers through the
Public Service Commission on April 21, 1975 on regular basis. In the
D letter of appointment issued by the Commissioner and Secretary to
Government of Haryana (Irrigation & Power Department) dated
January 13, 1975 it was specified again that inter-se seniority of Asst.
Engineers would be determined on the basis of the combined merit list
prepared hy the Public Service Commission. In the combined merit list
prepared by the Commission, respondents Nos. I and 2 were placed
E very much below the appellants and respondents Nos. 5-24 being at
serial Nos.

## Text

_Characters 0–39,919 of 73,181. This is a partial read: ask again with offset=39919 for what follows._

ASH OK GULA TI & ORS.
v.
B.S. JAIN & ORS.
DECEMBER 17, 1986
[A.P. SEN AND S. NATARAJAN, JJ.]
Jurisdiction of High Court urtder Article 226 of the Constitution-
-+ When the impugned order itself is for a temporary period of six months
and subject to the rights of others, propriety of the issuance" of Rule Nisi
and making it absolute after years, at the instance of an aggrieved party.
A
B
c
Temporary Service on ad hoc basis-and dehors the rules, counting
.;l of,-Whether such service rendered by the Asst. Engineers would count
for the purpose• of seniority in the cadre of Asst. Engineers and also for
+ the purposes of promotion to Class I Executive Engineers-Haryana
Service of Engineers Class II Public Works Department (Irrigation
Branch) Rules, 1964 and Haryana Service -of Engineers Class I Public D
Works Department (Irrigation Branch) Rules, 1964 as amended in 1975
Rules 2(5), 6(b), 15 and22, scope of
·
·
Words and Phrases-Meaning of "Prescribed" in Rule 15
whether there was relaxation of rule-If so, whether such a relaxation is
discriminatory and violative of Articles 14and16 of the Constitution.
E
Haryana Service of Engineers, Class II, Public Works Department (Irrigation Branch) Rules relating to recruitment etc. of Asst.
Engineery and Haryana Service of Engineers Class I, Public Works
Department (Irrigation Branch) relating to Executive Engineers came
into force in 1970 and 1964 respedively. Respondent No. 2, B.L. Gupta
F
and Respondents Nos. B.S. Jain were appointed as temp0rary engineers
(ad-hoc) with effect from 19.5.1969 and 2.1.1971 respectively, the
former sponsored by the Employment Exchange and the latter with
reference to an advertisement in the newspapers. Their appointments
were de hors the said Class II Rules to meet the exigencies of service. In
the letters of appointment issued to them it was specified (i) that their G
appointment was purely on an ad-hoc basis for a period of six months
from the date of their joining the post on a fixed salary of Rs.400 plus
allowances. and their services were terminable without notiee; (ii) that
the appointment would not entitle them to any seniority or other '1enefit
under the service rules for the time being in lorce and would also not
count towards increment in their salary; (iii) that the posts of TemporH
603
604
SUPREME COURT REPORTS
[1987] l S.C.R.
A ary Engineers in Class II service would be advertised in the course by .J
the Haryana Public Service Commission and they should apply for such
• posts through the Commission, and that if they were not selected by the
Commission, their services would be liable to be. terminated without
notice; and (iv) that their inter-se seniority among the Temporary
Engineers woold be in the 0rder of merit in the list of candidates as
B settled by the Commission. The services of respondents Nos. l and 2
were however continued by the State Government from time to time, six
months at a time till the Secretary, Haryana Public Service Commission
by his letter dated July 8, 1973 addressed to the Commissioner and
Secretary to the State Government of Haryana, Public Works Department (Irrigation Branch) conveyed the approval of the Commission to
C the ad-hoc appointment of 251 Temporary Engineers beyond the period .A
of six months till regular appointments were made to the posts through
the Commission. Accordingly both these respondents continued to hold
the posts of Temporary Engineers· on. ad-hoc basis till the end of the
year 1974 i.e. till they were recruited as Asst. Engineers through the
Public Service Commission on April 21, 1975 on regular basis. In the
D letter of appointment issued by the Commissioner and Secretary to
Government of Haryana (Irrigation & Power Department) dated
January 13, 1975 it was specified again that inter-se seniority of Asst.
Engineers would be determined on the basis of the combined merit list
prepared hy the Public Service Commission. In the combined merit list
prepared by the Commission, respondents Nos. I and 2 were placed
E very much below the appellants and respondents Nos. 5-24 being at
serial Nos. 148 and 150 respectively,
The State Government of Haryana by order dated December 20,
1978 promoted 62 Asst. Engineers including the appellants and respondent Nos. 5-24 as Executive Engineers on a purely ad-hoc basis for a
F · period of six months subject to certain terms and 'conditions, namely; (i)
the promotions were subject to the approval of the Pubiic Service
Commission as also to the claims of other officers; (ii) such promotions
were not to give any right to the officers for being appointed on a
substantive basis as Executive Engineers; and (iii) such of the officers as
had not passed the departmental professional and revenue examina-
~
1.
•
G
tions were required to pass such examination within a period of one
year or otherwise they were liable to be.reverted to their original post.
These ad-hoc promotions of the appellants and respondents Nos. 5-24
were made in relaxation of the provisions contained in rr. 6(b) and 15 of
the Haryana Service of Engineers, Class I Public Works Department
(Irrigation Branch) Rules, 1964. Presumably, the State Government
'r···
H
excluded from consideration tbe case of respondents Nos. 1 and 2 for
-
....
ASHOKGULATI v. B.S. JAIN
605
,1:-·
promotion because in the combined seniority list they ranked below the A
appellants. and respondents Nos. 5-24 being placed at serial Nos. ~8
and 150 respectively. ·
The said ad-hoc promotions to Class I posts were assailed by
respondents l 'and 2 by a petition under Article 226. A learned Single
Judge by his judgment dated 8.10.1980 quashed the impugned order of 8
the State Government making the said ad hoc promotions and directed
the State Government to reach a decision afresh as regards the ad hoc
promotions with advertence to the observations made by him. Thereupon, the appellants preferred an appeal under clause 10 of. the Letters
Patent but the appeal was dismissed in limine by the Division Bench, by
~--
its order dated 6, 11.1980. The appellants' contention that the appointC
ment of respondents Nos. l and 2 as Temporary Engineers on an ad-hoc
basis was contrary to para 8.312 of the Manual of Administration and
therefore the period during which they worked as Temporary
Engineers (ad-hoc) could not be taken into consideration, was repelled
..
-~-
by the Bench po the ground that no such point was taken before the
learned Single Judge. Hence the appeal by special leave.
·
Allowing the appeal, the Court
D
HELD: l. The High Court ought not to have exercised their powers under Article 226 of the Constitution and entertained the writ petition of respondents l and _2 particularly when the impugned order of
the State Government making promotion of the 62 Asst. Engineers
including the appellants and respondents 5-24 as Executive Engineers
was purely on an ad-hoc basis for a period of six months and expressly
made subject to the rights of other officers. Instead of interfering with
the impugned order of the State Government the proper course for the
High Court should have been to issue a direction to the State Government to consider the cases of the eligible officers including respondents
Nos. l and 2 for ad-hoc promotion as Executive Engineer if their turn
was due for such promotion according to their placement in the seniority list and it should have in the meanwhile allowed the appellants and
respondents Nos. 5-24 to continue in their posts as Executive Engineers
(ad-hoc) subject to the condition that while considering their cases for G
promotion the State Government would not take that circumstance into
consid_eration that they had continued to function as Executive
Engineers on an ad-hoc basis. [613G-H; 614A-C].
E
F
1.2 Rule. IS of the Punjab/Haryana Service of Engineers Class I H
P.W(D' (Irrigation Branch) Rules, 1970 in terms provides that the
606
SUPREM~ COURT REPORTS
(1987) lS.C.R.
A
departmental professional and revenue examinations for purposes of
I
promotion to the aass I service have to be passed within such period as
·-y,
may be prescribed. The word 'prescribed' in Rule 15 clearly ell!powers
the State Government to provide for the period during which the promoted officers had to pass the departmental test. In terms of that rule,
the State Government by the impugned order directed that the officers
B
who had not passed the departmental professional and revenue examinations were required to pass such examinations within a period of one
+
<
year otherwise they were liable to be reverted to their original post.
Therefore., no question ofrelaxation under Rule 22 arose. [613C-E)
2.1 The period of service rendered by persons like respondents
-
c Nos. I and 2 who were appointed on ad hoc basis purely on a stop gap
"'
arrangement for six months at a time de hors the rules, cannot be
considered for purtioses of their seniority in Class II service or in
-+
reckoning their eligibility of 8 years' service in that class of service
I
u11der Rule 6(b) of the Class I Rules. [625F-G]
D
2.2. As a matter of construction the words "Class II service" in
Rule 8(2) introduced by amendment in 1975 must be construed to have
the same meaning as the expression "Class II service" as defined in
Rule 2(5). Prior to the amendment in !975, the expression, "Class II
Service" as defined in Rule 2(5) meant the members of Class II service
including Temporary Engineers. The key to the interpretation of the
. .4
E definition clause in Rule 2(5) is the words "for the purpose of promoti on." The effect 11f the enlarged definition of Class II service in Rule
2(5) is that these words when found in the Act must, for the purpose of
promotion, be understood in that context in a certain sense i.e. to
include not only members of Class II Se_rvice including Temporary
...
~
Engineers but also Offg. Sub-Division Officers and Offg. Assistant
F Design Engineers who, but for the interpretation clause, would not be
so included. That would be in consonance with the purpose and object
\
of the amendment. [619G-H; 6208-C)
2.3 The meaning of the word "as" in the collocation of the words
"any service rendered as a Temporary Engineer" in Explanation to
G Rule 6(b) of the Class I Rules must obviously mean "in the capacity
of''. [621A-B]
Dr. Asim 'Kumar Bose v. Union of India & Ors., (1983) 1 sec
r-·
345, applied.
H
2.4 It is true that though respondents Nos. I and 2 were
~
-+
~
~
-+
->.
\ ---
~-
ASHOK GULATI v. B.S. JAIN
607
appointed as Temporary Engineers on an ad-hoc basis, they should be
deprived of the period oftheir officiation as such till they were absorbed
to the post of Assistant Engineer on a regular basis through the Public
· Service Commission on April 21, 1975. That is a legal consequence
which cannot be avoided on well-settled principles. [6230-E]
2.5 According to the accepted cannos of service jurisprudence,
seniority of a person appointed must be reckoned from the date he
becomes a member of the service. The date from which seniority is to be
reckoned may be laid down by rules or instructions (a) on the basis of
the date of appointment (b) on the basis of confirmation (c) on the basis
of regularisation of service (d) on the basis of length of service; or (e) on
any other reasonable basis. It is well-settled that an ad-hoc or fortuitous
appointment on a temporary or stop-gap basis cannot be taken into
account for the purpose of seniority even if the appointee was qualified
to bold the post on a regular basis, as such temporary tenure hardly
counts for seniority in any system of service jurisprudence. [6248-D]
2.6 It must now be well taken as ·well established that after the
Supreme Court decisions from N. K. Chauhan to Bales war Das 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 length of continuous service whether temporary or
permanent in a particular grade or post (this should exclude periods for
which an appointment is held in a purely stop-gap or fortuitous
arrangement). These decisions particularly that in Baleshwar Das's
case clearly lay down that ordinarily and in the absence of any specific
rule of seniority governing the cadre or service, the length of continuous
officiation should be counted in reckoning seniority as between direct
recruits and promotees. These authorities nowhere lay down that the
same principle i.e. the length of conlinuous officiation must be the sole
guiding factor and the only criterion in determining seniority of such adhoc employees vis-a-vis direct recruits. On the contrary, they clearly
proceed on the principle that persons appointed on an ad-hoc basis or
. for fortuitous reasons or by stop-gap arrangement, constitute a class
which is separate and distinct from tho8e who are appointed to posts in the
service in strict coofonnity with the rules ofrecrnilment. [629E-G; 627-E-F]
N.K. Chauhan & Ors. v. State of Gujarat & Ors., [1977] l SCR
1037; S.B. Patwardhan & Ors. v. State of Mahar~shtra & Ors., [1977]
3 SCR 775.; and Baleshwar Das & Ors. v. State of Uttar Pradesh &
Ors., (1981] l SCR449, discussed.
A
B
c
D
E
F
G
H
608
SUPREME COURT REPORTS
[1987] l S.C.R.
A
A. P. M. Mayakutty etc. v. Secretary, Public Service Department,
[1977] 2 SCR 937; State ofGujaratv. C.G. Desai & Ors., [1974] 2 SCR
255; A. lanardhana v. Union of India & Ors., [1983] 3 SCC 601;
O.P. Sing/av. Union of India, [1984] 4 SCC 450; G.S. Lamba v. Union
of India, [1985] 2 SCC 604; P.S. Mahal v. Union of India, [1984] 4 SCC
545; and Pran KriShna Goswami & Ors. v. State of West Bengal &
B Ors., [1985] Suppl. SCC 221, referred to.
c
D
E
F
Narendra Chadha & Ors. v. Union of India- & Ors., [1986] 2
SCC 157; G.P. Doval & Ors. v. The Chief Secretary, Government of
Uttar Pradesh & Ors., [1985] l SCR 70; and C. P. Damodaran Nayar v.
State of Kera/a & Ors., (1974] 2 SCR 867, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 149
of 1981.
From the Judgment and Order dated 6.1 J.1980 of the Punjab
and Haryana High Court in C.P. A. No. 811of1980.
M.K. Ramamurthy, U.R. Lalit, Shanti Bhushan, M.R. Sharma,
P.P. Rao, S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam,
P.P. Sharma, K.S. Tiwari, C.V. Subba Rao, I.S. Goel, P.H. Parekh,
Sohail Dutt, Uma Datta and V.P. Goel for the appearing parties.
The Judgment of the Court was delivered by
SEN, J. In this appeal by special leave, the short question
involved is whether respondents Nos. I and. 2 were entitled to the
benefits of the period of service rendered by them as Temporary
Engineers on an ad-hoc basis in the Irrigation Branch of the Public
Works Department, State of Haryana i.e. prior to their appointment
as Assistant Engineers on regular basis on April 21, 1975 along with
the six appellants and respondents No"s. 5-24 for purposes of reckoning
their eligibility for promotion to the post of Executive Engineer under
r. 6(b) read with the Explanation thereto of the Haryana Service of
Engineers, Class I, Public Works Department (Irrigation Branch)
G
Rules, 1964, as amended in 1975, ('Class I Rules' for short) as also for
purposes of their seniority in the cadre of Assistant Engineers.
Facts bearing on the question are as follows. In response to an
~--
advertisement published in the Daily Tribune of February 6, 1970
inviting applications for appointment as Temporary Engineers oo an
H
ad-hoc basis, respondent No. 1 B.S. Jain was appointed as a Tern-
--(
\ ...,.
/
ASHOK GULATI v. B.S. JAIN [SEN, i.]
609
porary Engineer (ad-hoc) w.e.f. January 2, 1971 for a period of six· A
months i.e. after the coming into force of the Haryana Service of
Engineers, Class II, Public Works Department (Irrigation Branch)
Rules, 1964 ('Class II Rules' for short). Prior to this.· respondents No.
2 S.L. Gupta was also appointed as a Temporary Engineer on an
ad-hoc basis w.e.f. May 19, 1969 by calling his name through the'
B
Employment Exchange i.e. subsequent to the.coming into force of the
Class II Rules. Their appointments were de hors the rules to meet the
exigencies of service. In the letters of appointment issued to them, it
was. specified that their appointment was purely on an ad-hoc basis for
a period of six months from the date of their joining the post on a fixed
salary of Rs.400 plus allowances and I.heir services were terminable
without notice. They were specifically informed that the appointment
would not entitle them to any seniority or other benefit under the
service rules for the time being in force and would also not count
towards increment in their salary. They were also intimated that the
posts of Temporary Engineers in Class II service would be advertised
in due course by the Haryana Public Service Commission and they
should apply for such posts through the Commission, and that if they
were not selected by the Commission, their services would he liable to
be terminated without notice. Also that their inter-se seniority among
the Temporary Engineers would be in the order of merit in the list of
candidates as settled by the Commission. The services ·of respondents
Nos. I and 2 were however continued by the State Government from
time to time, six months at a time, till the Secretary, Haryana Public
Service Commission by his letter dated July 8, 1973 addressed to the
Commissioner and Secretary to "the State Government of Haryana,
Public Works Department (Irrigation Branch) conveyed the approval
of the Commission to the ad-hoc appointment of 251 Temporary
Engineers beyond the period of six months till regular appointments
were made to the posts through the Commission. Accordingly, both
these respondents continued to hold the. posts of Temporary Engineers
on ad-hoc basis till the end of the year 1974 i.e. till they were recruited
as Assistant Engineers through the Public Service. Commission on
April 21, 1975 on regular basis.
It appears that in response to an advertisement issued by the
Public Service Commission in October- 1973, respondents Nos. I & 2
appeared at a competitive examination along with the appellants and
respondents Nos. 5-24 and were . selected by the Public Service
~ommission for appointment as Assistant Engineers under the
Haryana ~eryice of Engineers, Class II, Public Works Department
(Irrigation Branch) Rules, 1970. In the letter of appointment issued by
c
D
/
E
F
G
H
610
SUPREME COURT REPORTS
[ 1987] 1 S. C.R.
A the Commissioner and Secretary to Government of Haryana (Irrigation & Power Department) dated January 13, 1975 it.was specified that
inter-se seniority of Assistant Engineers would be determined on the
'
j
basis of the combined merit list prepared by the Public Service
Commission: In the combined merit list' prepared by the Commission,
respondents Nos. 1 & 2 were placed very much below the appellants +
B and respondents Nos. 5-24 being at serial Nos. 148 and 150 respectively. It may be stated that the merit list prepared by the Commission
has never been questioned before us.
A few more facts. The State Government of Haryana by order
dated December 20, 1978 promoted 62 Assistant Engineers including
C the appellants and respondents Nos. 5-2.J as Executive Engineers on a
purely ad-hoc basis for a period of six months subject to certain terms
and conditions, namely: (i) The promotions were subject to the
approval of the Public Service Commission as also to the claims of
other officers. (ii) Such promotions were not to give any right to the
officers for being appointed on a substantive basis as Executive
D Engineers. And (iii) Such of the officers as had not passed the departmental professional and revenue examinations were required to pass
such examinations within a period of one year or otherwise they were
liable to be reverted to their original post. These ad-hoc promotions of
the appellants and respondents Nos. 5-24 were made in relaxation of
the provisions contained in rr.6(b) and 15 of the Haryana Service of
E Engineers, Class I, Public Works Department (Irrigation Branch)
Rules, 1964. Presumably, the State Government excluded from
considc;ration the case of respondents Nos. 1 & 2 for promotion
·because in the combined seniority list they ranked below the appellants and respondents Nos. 5-2.J being placed at serial Nos. 148 and 150
respectively.
F
The ad-hoc promotion of appellants and respondents Nos. ·5·2.J
was assailed by respondents Nos. 1 & 2 by a petition under Art. 226 of
the Constitution filed before the Punjab & Haryana High Court
mainly on the ground "that when qualified persons like them i.e.
respondents Nos. 1 & 2 were eligible for being considered for promoG tion to the post of Executive Engineer under r. 6(b), there was no
justification whatever for the State Government to grant general relaxation under the pro>(iso thereof to make the ineligible persons eligible
for promotion in denial of their claims. It was further pleaded that the
State Government having relaxed the condition of eligibility under the
proviso to r.6(b) read with the Explanation thereof as regards eight
H years service in the case of promotion of the appellants and respon·
\ ..,,
-
ASHOK GULA Th. B.S. JAIN [SEN, J.l
611
dents Nos. 5-24 as Executive Engineer on an ad-hoc basis, failed to
appreciate that respondents Nos. I & 2 who were recruited along with
them and had also put in more or less 31/2 years service as Assistant
Engineers became entitled to the benefit of such relaxation and the
action of the State Government in not considering their cases for such
promotion was wholly arbitrary and was tantamount to denial of equal
.opportunity in the matter of employment in violation of Arts. 14 and
16( 1) of the Constitution. It was also pleaded that the power conferred
on the State Government to grant relaxation under r.22 was not a
general power but a powe.r to mitigate hardship in a particular case and
thus the general relaxation granted by the State Government to some
of the respondents who had not passed their departmental· professional
and revenue examinations was invalid. It was asserted that the State
Government and the . Engineer-in-Chief, Irrigation Department,
Haryana had wrongly treated respondents Nos. 1 & 2 as ineligible for
promotion on the ground that the period from January 1971 and May
1969 upto April 2'1, 1975 i.e. the period during which respondents Nos.
A
B
c
1 & 2 remained employed as Temporary Engineers on ad-hoc basis,
could not be treated as period in tha_t class of service within the meanD
ing of r.6(b) i.e. in Class II service.
The ·specific stand taken by the State Government in the return
filed before the High Court was that respondents Nos. I & 2 were
recruited to the post of Assistant Engineer on April 21, 1975 and thus
had·only about 31/2 yea'rs service on December 20, 1978 to their credit
E
when appellants and respondents Nos. 5-24 were promoted as Executive Engineers on an ad-hoc basis. Prior to their appointment as
Assistant Engineers, respondents Nos. 1 & 2 had been appointed as
Temporary Engineers on ad-hoc basis de hqrs the rules and under the
terms of appointment they were not entitled to any seniority or other
benefit under the service rules as a result of such appointment.
F
Further, it was pleaded that respondents Nos. I & 2 in the seniority list
prep'ared by the Public Service Commissiop were ranked junior to the
appellants and respondents Nos. 5-24 and therefore they were not
entitled to be considered for promotion.
A learned Single Judge (R.N. Mittal, J.)by his judgment dated
G
'
.
October 8, 1980 quashed the impugned order of the State Government
making ad-hoc promotions of the appellants and respondents Nos.
5-24 and directed the State Government to reach a decision afresh as
regards the ad-hoc promotions with adverterice to the observations
made by him. In his judgment the learned Single Judge repelled the
contention of respondents ~os. 5-24 for being considered for promo'
H
A
B
612
SUPREME COURT REPORTS
[1987] l S.C.R.
tion since none of them had completed eight years' service as Assistant
Engineer on the ground that the State Government was empowered in
terms of proviso to r. 6(b) to relax generally, in public interest, the
condiiion regarding eight years' experience for reasons to be recorded
in writing. He found on perusal of the records placed before him that
reasons for the relaxation in public interest of the condition of eight
years' service imposed by r.6(b) had in fact been recorded for reducing
the period to 31/2 years in consultation with the Finance Department. ·
He accordingly held that the ad-hoc promotion of the appellants and
respondents Nos. 5-24 was not invalid on that account. The learned
Single Judge however accepted the contention of respondents Nos: 1
& 2 that they were entitled to the benefit of the period of continuous
officiation as Temporary Engineers on an ad-hoc basis from January
C
1971 and May 1969 to April 21, 1975 in reckoning eight years' experience in that class of service within the meaning of r.6(b) i.e. Class II
service by reason of Explanation to r. 6(b) and were therefore eligible
for promotion to the post of Executive Engineer under r. 8(2) in view
of the definition of the expression 'Temporary Engineer' contained in
D r.2(5), as amended in 1975. _He also upheld their contention that the
·power conferred on the State Government under r.22 was not a general power of relaxation but a power exercisable only to mitigate any
undue hardship in the case of a particular individual and therefore the
_impugned order of the State Government permitting relaxation in the
case of respondents Nos. 9, 10 and 11 Gyan Singh, P.O. Kadian and
E C. P. Goel as regards the passing of the departmental professional and
.revenue examinations as required by r. 15 was invalid. Upon that view,
the learned Single Judge allowed the Writ Petition and quashed the
impugned order of the State Government for the ad-hoc promotion of
the appellants and respondents Nos. 5-24 as Executive Engineers.
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Incidentally, the judgment ·of the learned Single Judge leaves
untouched the impugned order insofar as it relates to the ad-hoc
promotion of 37 Assista!'t Engineers to the post' of. Executive
Engineer.
Thereupon, the appellants preferred an appeal under cl.10 of the
letters patent but the appeal was dismissed in limine by a Division
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Bench (P.C. Jain & C.S. Tiwana, JJ) by its order dated November 6,
1980. The learned Judges stated that they were in full agreement with
the view expressed by the learned Single Judge. The appellants apparently advanced a contention that the appointment of respondents
Nos. 1 & 2 as Temporary Engineers on an ad-hoc basis was contrary to
Para 8.312 of the Manual of Administration and therefore the period
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during which they worked as Temporary Engineers (ad-hoc) could not
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ASHOKGULATI v. B.S. JAIN [SEN, J.]
613
' .v-· be taken·into consideration. The.learned Judges repelled the contenA
1.
tion o,n the ground that no such point was taken before the. learned
Single Judge.
We must at the very outset observe that the judgment of the
learned Single Judge quashing the impugned order of the State
Government for the promotion of the appellants and respondents N0s.
5-24 as ~xecutive Engineers on an ad-boc basis on the ground that the
State Government could not have relaxed the condition of passing the
departmental profressional and revenue examinations prescribed
under r. 15 of the Class I Rules by taking. recourse to r. 22 which did
not confer a general power of relaxation can hardly be sustained. We
are afraid, the learned Single Judge was completely misled in taking
the view that he did. This was not a case of relaxation at all but a
question of prescribing the period during which such examination had
to be cleared as required under r. 15. R. 15 in terms provides that the
departmental professional and revenue examinations for purposes of
promotion to the Class I service have to be passed within such period
as ·may be prescribed. Jbe word 'prescribed' in r. 15 clearly empowers
· the State Government to provide for the period during which the
promoted officers had to pass the departmental test. In terms of that
rule, the State Government by the impugned order directed that the
officers who had not passed the departmental professional and
revenue examinations were required td pass such examinations within
a period of one year otherwise they were liable to be reverted fo their
original post. It must be said in all fairness that learned eounsel for
respondents Nos. 1 & 2 did not support.this part of the Judgment.
After having heard learned counsel for the parties quite at some
length in a hearing lasting over several days; we feel that irrespective
cf the merits of the contentions advanced, no useful purpose would be
served in maintaining the judgment of the High Court insorfar as it
quashes the impugned order of the State Government dated December 20, 1978 for the promotion of the appellants and respondents Nos.
5-24 as Executive Engineers on an ad-hoc basis after a lapse of such a
long time as it would create unnecessary administrative complications.
During the hearing we expressed our doubts about the wisdom of the
High Court in entertaining the Writ Petition of resp~ndents Nos. 1 & 2
particularly when the impugned order of the State Government making promotion of the 62 Assistant Engineers including the appellants
and respondents Nos. 5-24 as Executive Engineers was purely on an
ad-hoc basis for a period of six months a.nd expressly made subject to
the rights of other officers. Instead of interfering with the impugned
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order of the State Government the proper course for the High Court 'f
should have been to issue a direction to the State Government to
consider the cases of the eligible officers including respondents Nos. 1
& 2 for ad-hoc promotion as Executive Engineers if their turn was due
for such promotion according to their placement in the seniority list
and it should have in the meanwhile allowed the appellants and respondents Nos. ·5-24 to continue in their posts as Executive Engineers -::y·
(ad-hoc) subject to the condition that while considering their cases for
promotion the State Government would not take that circumstance
into consideration that they had continued to function as Executive
Engineers on an ad-hoc basis.
That course commends to us for another reason as well.
Although the High Court by its judgment and order dated October 8,
1980 quashed the impugned order of the State Government dated
December 20, 1978 making the ad-hoc promotions and issued a direction that the Government should reach a decision afresh in the matter,
the fact remains that neither the judgment of the High Court nor the
D directions made by it have taken effect. On the contrary, this Court
while granting special leave on January 14, 1981 stayed the operation
of the judgment of the High Court. As a consequence, the result has
been that the appellants and respondents Nos. 5-24 have continued to
function as Executive Engineers on an ad-hoc basis for the last about
eight years under the interim order of stay. Incidentally, the judgment
E of the High Court leaves untouched the promotion of 37 Assistant
Engineers and Executive Engineers. The State Government will also
have to give effect to the decision of this Court in A.S. Parmar's v.
State of Haryana, [1984] 2 SCR 476 laying down that a degree in
Engineering was ·not an essential qualification for promotion of
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Assistant Engineers in the Irrigation Branch to the cadre of Executive
Engineers in Class I service under r. 6(b) of the Class I Rules and
therefore the Assistant Engineers who are diploma holders are euqally
eligible for such promotion. The State _Government in the Public
Works Department (Irrigation Branch) by a notification dated June
22, i984 purported to effect an amendment to r.6(b) of the Class I
Rules with a view to nullify the decision of I.his Court in A.S. Parmar's
case. By a separate judgment in the connected Writ Petitions Nos.
630-32/84 deli,,ered today, we have struck down the impugned notification as offending against Arts. 14 and 16(1) of the Constitution and
also as ultra vires the State Government by reason of the proviso to
s.82(6) of the Punjab Reorganisation Act, 1966. It appears that the
State Government has been treating a degree in Engineering referred
to in Cl.(a) r.6 as an essential qualification for promotion to the post of
ASHOK GULATI v. B.S. :JAIN [SEN, J.l
615
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Executive Engineer in Class I service in the case of officers in Class II A
service presumably on the view expressed by the Punjab & Haryana
High Court in O.P. Bhatia v. State of Haryana, ILR (1980] P & H 470. ·
The controversy was settled by the decision of this Court in J\.S.
Parmar's case and it overruled the decision of the High Court in O.P.
Bhatia's case and held on a consideration of the relevant rules that the
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qualification of degree in Engineering was not necessary fo the case of
officers in Class II service for promotion to the post of Executive
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Engineer. That apart, we must deal with the appeal on merits as the
judgment of the High Court leaves much to be desired.
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Issues raised in this appeal by special leave are of far-reaching
significance to the civil services. It involves a claim by persons who had c
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been in employment in the Government service on a purely ad-hoc
basis de hors the rules, that they were entitled upon their absorption to
the po~t on a regular basis, to the benefit of the period of their continu:
ous officiation as temporary employees on ad-hoc basis for determining their eligibility for promotion to the higher grade or post. The
D
questions presented are whether the principles laid down in N. K.
Chauhan & Ors. v. State of Gujarat & Ors., [1977] 1 SCR 1037 and
S.B. Patwardhan & Ors. v. State of Maharashtra & Ors., [1977] 3 SCR
n5 reiterated in Baleshwar Das & Ors. v. State of Uttar Pradesh &
Ors., [ 1981] l SCR 449 and subsequently followed in several decisions,
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that ordinarily in the absence of any specific rule of seniority governing
the cadre or service, the length of continuous officiation should be
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coun.ted in reckoning seniority as between direct recruits and pro-
..
motees, should also be extended in determining seniority of such adhoc employees vis-a-vis dire'ct recruits, and whether the failure on the
part of the Government to count the entire period of officiation as
such ad-hoc employees would be per se arbitrary and irrational and
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thus violative of Arts. 14 and 16(1) of the Constitution inasmuch as the
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temporary service in the post in question was not for a short period
intended to meet some emergent or unforeseen circumstances, but to
meet the exigencies of the service. It is asserted that the recent pronouncement of .this Court in the case of Narendra Chadha & Ors. v.
Union of India & Ors., [1986) 2 SCC 157 supports this view. The
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argument at first blush appears to be plausible but on deeper consideration is not worthy of acceptance. We proceed to give reasons therefor.
....
We are not aware of any principle or rule which lays down that
the length of continuous officiation/service is the only relevant criterion in determining seniority in a particular cadre or' grade, irrespecH
tive of any specific rule of seniority to the contrary. It is necessary to
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[1987] l S.C.R.
emphasise that the principles laid down in the two leading cases of
N.K. Chauhan and S.B. Patwardhan, reiterated in Baleshwar Das's
case and subsequently follow.ed in several decisions are not an authority for any such proposition. These decisions particularly that in
Baleswar Das's case clearly lay down that ordinarily and in the absence
of any specific rule of seniority governing the cadre or service. the
length of continuous officiation should be counted in reckoning seniority as between direct recruits and promotees. These authorities
nowhere lay down that the same principle i.e. the length of continuous
officiation must be the sole guiding factor and the only criterion in
deterinining seniority of such ad-hoc employees vis-a-vis direct
recruits.
The contention on behalf of the appellants firstly is that the High
Court was clearly in e.rror in holding that the entire period of service of
respondents Nos. l & 2 as Temporary Engineers on ad-hoc basis i.e.
the period from January 197 land May 1969 to April 21, 1975 had·to be
counted not only for purposes of their seniority under r.8(2) of the
Class I Rules but also for the purpose of their eligibility for promotion
to the post of Executive Engineers under r.6(b). It is said that the High
Court failed to appreciate that respondents Nos. l & 2 were not
recruited as Temporary Engineers under the instructions contained in
the Manual of Administration issued under the Punjab Service of
Engineers, Class II, Public Works Department (Irrigation Branch)
Rules, 1941 orunder the Punjab Service of Engineers, Class II, Public
Works Department (Irrigation Branch) Rules, 1970, but their appointment as Temporary Engineers was purely on an ad-hoc basis de hors
the rules and therefore they did not fall within the ambit of the definition of the expression 'Class II Service' as defined in r. 2(5), as
amended in 1975. Secondly, the High Court failed to take into acco ,nt
the fact that respondents Nos. I & 2 became members of Class II
service only on April 21, 1975 when they were recruited as Assistant
Engineers on a regular basis through the Public Service fommission.
Till then they did not answer the description of 'Temporary Engineers
as defined in r.2(5). They did not even figure in the notification dated
May 18, 1982 issued by the State Government under r.3 constituting
the service of Engineers as Class II service w.e.f. December 25, 1970.
It must therefore logically follow that the service rendered by them as
Temporary Engineers on ad-hoc basis prior to their recruitment as
Assistant Engineers in 1975 could not be·treated to be service in that
class within the meaning of r.6(b) of the Class I Rules. Likewise, r.8(2)
which speaks of any service rendered as Temporary Engineer must be
H construed accordingly as meaning service rendered by a Temporary
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ASHOKGULATI v; B.S. JAIN (SEN, J.)
617
Engineer recruited in the manner provided by the instructions A
contained in Manual of Administration issued under the 1941 Rules or
recruited as such under the 1970 Rules. Lasily, the decision in Baleshwar Das's case does not lay down any proposition that persons
employed on a purely ad-hoc or fortuitous basis like respondents Nos.
1 & 2 are entitled as a matter of law to the benefit of their period of
ad-hoc service and the two later decisions in G.P. Doval & Ors., v.
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The Chief Secretary, Government of Uttar Pradesh & Ors., [1985] I
SCR 70 and Narendra Chadha are of little assistance. T)lese submissions, in our opinion, must prevail.
In reply, the main contentiQn of learned coul)sel for respondents
Nos. 1 & 2 is that respondents Nos. 1 & 2 upon their absorption to the
post of Assistant Engineer on a regular basis on April 21, 1975 were
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entitled to the benefit of the 'entire period of officiation as Temporary
Engineers on an ad-hoc basis i:e. the period from January 1971 and
May 1969 to April 21, 1975 and.the failure of the Government to count
such period of their ad-hoc service was per se arbitrary, irrational and
thus violative of Arts. 14 and 16( 1) of the Constitution inasmuch as the o
service rendered by them as Temporary Engineers (ad-hoc) was not e
for a short period intended to meet some emergent or unforeseen
circumstances, but to meet the exigencies of the service and there is no
reason why the pri.nciples laid down in Baleshwar Das's case should
also not be extended in determining the seniority of such ad-hoc
employees vis-a-vis direct recruits.