# • v. STATE OF J & K AND OTHERS - **Citation:** [2000] 3 S.C.R. 807 - **Court:** Supreme Court of India - **Decided:** 2000-04-28 - **Bench:** M. Jagannadharao, A.P. Misra - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-state-of-j-k-and-others-17419 - **Pages:** 44 ## Headnote B Service Law : J & K (Classification Control and Appeals) Rules 1956-Rules 5 & 23J & K Engineering (Gazetted) Service Recruitment Rules, 1978-Rule 5(4)- c J & KPublicService Commission(Iimitation of functions) Regulations, 1957Regulation 4( d)(ii)-Appointment-To the post of Assistant Engineers-On ad hoc promotion for a period more than six months without consulting Public Service Commission-Regularisation thereof-By relaxing recruitment rules- ~ And granting them, seniority within their quota as well as from the quota of direct recruits~Delayed recruitment of direct recruits-No evidence that suitD able candi.dates were not available for direct recruitment-Held, The wholesale regularisation by way of implied relaxation of the recruitment rule to the g- High Court, allowing the writ petitions of direct recruits, held that the orders for ad-hoc continuance beyond six months and till regularisation, without consultation were ineffective, since as per J & K Service Commission Regulation 4(d)(ii), officiating promotion or transfer to any B service or post should not be beyond six months, unless the Commission was consulted; and that quota rota rule existed. The order of blanket regularisation of promotee Assistant Engineers dated 2.1.98 was in violation of Regulation 4(d)(ii); and that the order dated 2.1.98 could not have the effect of regularising the entire ad-hoc service. The direct recruits could count their seniority from the date of their substantive appointment c "ithin their quota, and the claims of promotees whose stop gap promotion exceeded six months should be referred to the Commission for determining their suitability. In appeal to this Court the promotee Assistant Engineers contended that the order dated 2.1.98 even if it be without the concurrence of the D Commission, could be treated as one passed by the Government by impliedly relaxing the Service Commission Regulation as the provisions of Section 133 of J & K Constitution were not mandatory, and considering the long years of service of the promotees, it was permissible for the State to relax '_, J-. the service rules; and that there was no rota and there was break down of E quota rule. The direct recruits contended that there is no rule for commencing probation retrospectively in the case of a person promoted by transfer temporarily; and that though there is no express rota rule, the same is to be implied and read into the quota rule, and there has been previous practice of applying a rota; and that the entire service of the F promotee continued beyond 6 months without consulting the Commission '( be treated as non-est, and only service rendered in accordance with rules can be regularised retrospectively; and that the direct recruitment appointment can be ante-dated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not _ .. directly recruited. G Disposing of the appeals, the Court HELD : 1.1. The wholesale regularisation by order dated 2.1.1998 (for the Electrical Wing) by way of implied relaxation of the recruitment rule to the gazetted category is invalid .. It is also bad as it has been done H 810 SUPREME COURT REPORTS [2000] 3 S.C.R. A without following the quota rule and without consulting the Service Com- ~ mission. Further, power under Rule 5 of the J & K CCA Rules, 1956 to .-:- relax rules cannot be treated as wide enough to include a power to relax rule of recruitment. [828-F] ..- G.S. I..amba v. Union of India, [1985] 2 SCC 604; Narender Chadda v. --.. B Union of India, [1986) 2 SCC 157; V. Sreenivasa Reddy v. Govt. of A.P., [1995) Suppl. 1 SCC 572 and Ashok Kumar Uppal v. State of J & K, [1998) 4 sec 179, distinguished. ~ Keshav Chandra Joshi v. Union of India, [1992) Suppl. 1 SCC 272; c Syed Khalid Rizvi v. Union of India, [1993) Suppl. 3 SCC 575 at 603; State of Orissa v. Sukanti Mahapatra, [1993) 2 SCC 486; D1: M.A. Haque v. Union of India, [1993) 2 SCC 213; Jammu and Kashmir Public Service Commission v. Dr. Narinder Mohan, [1994) 4 SCC 630; Anundhati Ajit Pargaonkar v. State of Maharashtra, [1994) Suppl. 3 SCC 380 and Dr. Surinder Singh Jamwal D and Anr. v. State of J & K, [1996) 9 SCC 619, relied on. J.C. Yadav v. State of Haryana, [1990) 2 SCC 189 and Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, [1990) 2 sec 619, referred to. E 1.2. On facts, the reason given in the Cabinet note for granting _--l._ < relaxation are insufficient. In fact, the letter of the Commission was prepared to give its opinion in regard to Regularisation of such promotee but the Government backed out when the Commission called for the records relevant for considering suitability for regular promotion. There can be no hardship for a person seeking appointment or promotion to go F by the procedure prescribed therefor. The relevant recruitment rule for promotion cannot itself be treated as one producing hardship. If such ,, relaxation is permitted in favour of promotees then the same yardstick may have to be applied for direct recruits. If it is to be held that direct recruitment can also be permitted without consulting the Service G Commission (in case it is required to be consulted), there will be total chaos in the recruitment process and it will lead to backdoor recruitment at the whims and fancy of Government. Such a blanket power of -~ relaxation of recruitment rules cannot be implied in favour of the Government. [828-H; 829-A-C] H Narender Chadda v. Union of India, [1986) 2 SCC 157, distinguished. S.P. GUPTA v. STATE 811 ¥' Jammu & Kashmir Public Service Commission v. Narender Mohan, A ., (1994] 2 SCC 630; Dr. Surinder Singh Jamwal and Anr. v. State of J & K, (1996] 9 sec 1, referred to. -."': 1.3. In the present case the Government was merely carried away by sympathy to the promotees. By not making direct recruitment after 1998, B by restricting direct recruits to 10% rather than permitting 20% and by deliberately promoting the Junior Engineers to the other 10% quota of the direct recruits, the State Government had definitely acted in a biased manner. There is any amount of justification for the grievance of the direct recruits that the state had passed an omnibus order on 2.1.1998 regularising all ad-hoc promotees (Electrical Wing) without consulting the Commisc sion, by way of deemed relaxation, in a wholly arbitrary manner, counting the entire ad-hoc service of promotion. (829-D] ~-· 2.1. There is no rota coupled with quota but there is only a quota rule. On the question of hreak down of quota rule except the lethargy of the State Government and its inaction and its not asking the Service D Commission to make direct recruitment, no other cause is visible. The Cabinet not only stated that because reference to PSC would take a long time, the ad-hoc services of promotees were to be regularised. The delay on part of the Government appears to be motivated for the purpose of block- ; -> ing the quota of the direct recruits and giving a part of it to promotees. E When a very belated decision was taken to make direct recruitment, the same was restricted to 10% rather than to the statutory quota of 20%. This attitude on the part of the State was not reasonable. Further under Rule 5(4) of the Recruitment Rules, 1978 it is provided that in case suitable candidates are not available for promotion, the posts shall be filled up by F direct recruitment and vice-versa. Thus, there must he evidence that suit- ~ able candidates were "not available" for direct recruitment. Such nonavailability cannot be inferred when, as a fact, not even a reference is made to the Commission to find out if upon advertisement, anybody will re- - spond. Cabinet note dated 19.12.1997 only states that cases of the ad-hoc promotees if referred to PSC, will take a long time for getting the necesG sary recommendation. But nowhere it is said that direct recruits were not i available or such recruitment had became impracticable. Thus there is no breaking down of the quota rule. (832-F; 830-G-H; 831-A-B] Direct Recruit Class II Engineering Officers' Association v. State of H 812 SUPREME COURT REPORTS (2000] 3 S.C.R. A Maharashtra, (1990) 2 S.CC 715, distinguished. ~ c N.K. Chauhan v. State of Gujarat, (1977) 1SCC308; Syed Khalid.Rizvi v. Union of India, [1993) Suppl. 3 SCC 575 and M.S.L Patil v. State of Maharashtra, (1996) 11 SCC 361, relied on. ..;... B 2.2. In view of the admission by all parties that there is no express rota rule, the decision of the High Court that rota principle applied c;annot be upheld. There is no question of quota being necessarily 'inter-locked' with rota. [832-B] c N.K. Chauhan v. State of Gujarat, (1977) 1 SCC 308 and B.S. Yadav v. State of Haryana, (1981) 1 SCR 1024, relied on. 2.3. A practice must be consistent with Rules, and that a practice not consistent with rules is not acceptable. A past practice which was dehors a rule could be of no help. [832-D-E] D L Chandra Kishore Singh v. State of Manipur, JT (1999) 7 SC 576 and Stephen Joseph v. Union of India, [1997) 4 SCC 753, relied on. 3. The ad-hoc/stop gap service of the promo tees cannot be treated as non-est merely because P.S.C. was not consulted in respect of continuance E of the ad-hoc/stop gap service beyond six months. Such service is capable -~ ~ of being regularised under Rule 23 of the J & K (CCA) Rules, 1956 and rectified with retrospective effect from the date of occurrence of a clear vacancy in the promotion quota, subject to eligibility, fitness and other relevant factors. There is no 'rota' rule applicable. The 'quota' rule has F not broken down. Excess promotees occupying direct recruitment posts have to be pushed down and adjustment made in lat~r vacancies within their quota, after due regularisation. Such service outside promotee quota cannot count for seniority. Service of promotees which is retrospective with effect from the date of vacancies within quota counts for seniority. However, any part of such ad-hoc/or stop gap or even regular service .. G rendered while occupying the direct recruitment quota cannot be counted. Seniority of promotees or transferees is to be fixed as per quota and from date of commencement of probation/or regular appointment as stated ~ above. Seniority of direct recruit is from the date of substantive appointment. Seniority has to be worked out between direct recruits or promotees H for each year. [847-F-H; 848-A-B] S.P. GUPTA v. STATE 813 ..,. >. State of West Bengal v. Aghore Nath Dey, (1993] 3 SCC 371; Direct A Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990] 2 SCC 715; Syed Khalid Rizvi v. Union of India, (1993] Suppl. 3 SCC ---1. 575; I.K. Sukhija v. Union of India, [1997] 6 SCC; Desoola Ramarao v. State of A.P., [1988] Suppl. SCC; State of A.P. v. K.S. Muralidhar, [1992] 2 SCC 241; M. Janardhan v. State of A.P., (1994] Suppl. 3 SCC 298, relied on. B '- V Sreenivasa Reddy v. Govt. of A.P., (1995] Suppl. 1 SCC 572; K. Siva Reddy v. State of A.P., (1988] 3 SCR 18; Ramender Singh v. Jagdish Prasad, (1984] Suppl. SCC 142; A.P.M. Mayan Kutty v. Secretary, [1977] 2 SCC 360; State ofT.N. v. E. Partpoornam, (1992] Suppl. 1SCC420; P.D. Aggarwal v. State of U.P., (1987) 3 SCC 622; Masood Akhtar Khan v. State of M.P., [1990) c 4 SCC 24; Vijay Kumar Jain v. State of M.P., [1992) Suppl. 2 SCC 95; State of Orissa v. Sukanti Mahapatra, [1993) 2 SCC 486; D1: Arundlzati Ajit ... Pargaonkar v. State of Maharashtra, (1994] Suppl. 3 SCC 380; E. Ramakrislzan v. State of Kerala, (1996) 10 SCC 565; C.K. Antony v. B. Muraleedlzaran, [1998) 6 SCC 630; D.N. Agrawal v. State of M.P., [1990) 2 SCC 553; B.N. D Nagarajan v. State of Karnataka, (1979) 3 SCR 937 and State of Bilzar v. Akhouri Sachindra Nath, Am (1991) SC 1244, distinguished. Baleshwar Das v. State of U.P., [1981) 1SCR449; B.S. Yadav v. State of .>. Haryana, (1981) 1 SCR 1024; A. Janardhan v. Union of India, (1983) 2 SCR 936; G.P. Doval v. Chief Secretary Government of U.P., (1984) 4 SCC 329; E Narender Chadd.a v. Union of India, (1986] 2 SCC 157; A.N. Pathak v. Secretary to The Government, (1987) Suppl. SCC 763; Delhi Water Supply & Sewage Disposal Committee v. R.K. Kashyap, (1989) Supp. 1 SCC 194; Keshav Chandra Joshi v. Union of India, (1992) Suppl. 1 SCC 272; Rajbir Singh v. Union of India, Am (1991) SC 518; A.N. Sehgal v. Raje Ram F Sheoram, (1992] Suppl. 1 SCC 304; S.L Chopra v. State of Haryana, (1992] Suppl. 1 SCC 391 and Keshav Dev v. State of U.P., (1999] 1 SCC, referred to. - 4. The contention of the direct recruits that direct recruitment appointment should be ante-dated from the date of occurrence of vacancy in G i direct recruitment quota, even if on that date the said person was not directly recruited, cannot be accepted. The reason that in Service Jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. [848-D; F] H 814 SUPREME COURT REPORTS (2000] 3 S.C.R. A N.K. Chauhan v. State of Gujarat, (1997] 1 SCC 308 (at P.321); A. "' 4'- Janaradlzana v. Union of India, (1983] 2 SCR 936 and A.N. Pathak v. Secretary to The Government, (1987] Suppl. SCC 763, relied on. (The court directed the state of Jammu & Kashmir to appoint a high ,..____ level Committee within a month from the date of the judgment to go into B the question as to whether in any department in Government service, direct recruitment of existing vacancies has not been made and if there was unreasonable delay; and to consider making recruitment expeditiously J ~ depending on the needs in the service and other relevant factors, and to ensure that no promotees are put in the direct recruitment quota, tempoc rarily or on stop gap or ad-hoc basis unless simultaneously proceedings are initiated for direct recruitment through the service Commission. The Committee will recommend in what manner the direct recruitment could keep pace with promotions as contemplated by rules. The Committee will find out in which department the ad-hoc/stop-gap promotees are languishing D without their cases being referred to the Service Commission/DPC for regularisation \vithin their quota. The State will ensure that no relaxation of basic recruitment rules is made for direct recruitment through P.S.C., or for purpose of regular promotions/recruitment by transfer. The recommendations of the Committee may be considered, by Government and implemented in accordance with the rule and in accordance with law -~ .. E without unreasonable delay.) [850-C-F] CIVIL APPELLAIB JURISDICTION : Civil Appeal No. 3034 of 2000 Etc. Etc. From the Judgment and Order dated 14.12.98 of the Jammu & Kashmir F High Court in S.W.P. No. 47 of 1998. M.H. Baigh, Raju Ramachandran, G.K. Banerjee, Ms. Hina, Ms. Nandini Gore, Dhruv Mehta, Ms. Shobha, S.K. Mehta, (M.A. Gani) General for J & K, A.M. Magray, Ashok Mathur, N Safaya, Santosh Gupta, Saiwa Mitter, Ms. Beena Madhavan, P.H. Parekh, G.M. Kawaoosa, N. Ganapathy, Ms. Rani - G Chhabra, Ms. Richa Goyal, Sibo Sankar Mishra and P.N. Puri for the appearing parties. ~ The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave granted in all the special leave H petitions. S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 815 These Civil Appeals arise out of several writ petitions filed in the High A Court of Jammu & Kashmir in which common judgment was delivered on 14.12.1998. The judgment of the High Court deals with power of Government to appoint officers on promotion temporarily for periods of more than six month without consulting the Public Service Commission, grant of seniority to such promotees in respect of service within their quota and also outside B quota. Validity of the order passed by the State Government on 2.1. 1998 regularising, at one stroke, several ad hoc promotions made between 25.5.1973 to 31.12.1996 was in issue, so far as the Electrical Wing was concerned. We are concerned only with the regularisation of ad hoc Assistant Engineers and Assistant Executive Engineers (see Point 2 in the High Court Judgment). The High Court held that ad hoc/stop-gap service of promotees could not be regularised. A contention was also raised before us by the direct recruits that stop gap or ad hoc service of promotees could never be regularised and only service rendered in a post where a person if appointed "according to rules" can be regularised and that there was rota coupled with quota. All the appeals before us have been filed by the promoted Assistant Engineers. c D How the appeal have arisen : SWP 522/90 was filed in the High Court by the direct recruit Assistant Engineers of the Mechanical department to fix a seniority and to declare that they were entitled to the post of Assistant Executive Engineers w.e.f. thedate of their appointment as Assistant Engineers and to treat direct recruits as senior to respondents 3 to 121 therein (promotees) and to quash the promotion of respondents 3 to 32 therein as Assistant Executive Engineers (Mechanical). Similarly SWP. 227/97 and 47198 were filed by direct recruit Assistant Engineers (Electrical) seeking the quashing of Govenunent Order dated 12.12.1997 containing the seniorty list and also to quash the Government Order dated 2.1.1998 whereby services of several ad hoc promotee Assistant Engineers of the Electrical wing were regularised. They sought a further direction for issuing a fresh seniority list and for promotion as per quota and a direction not to fill up the post of Assistant Executive Engineers from among promotees' quota till seniority as per quota was fixed. CWP 1869197 and 824-B/94 were filed by the direct recruits Civil Engineers (Hydraulic) for fixing seniority as per the recommendations of the Committee constituted by E F G the Government by its order dated 31.2.1997 and for a direction not to promote promotee Assistant Engineers as Assistant Executive Ellgineers till H + '-- 816 SUPREME COURT REPORTS [2000] 3 S.C.R. A a final seniority list was prepared. ~ SWP 705/94 and 777/94 were filed by the promotee Assistant Engineers (Mechanical) to quash the seniority list of Assistant Engineers dated 28.4.1994 and for issuance of fresh seniority list according to date of B appoinunent, irrespective of quota. Similar relief was claimed by the promotee Assistant Engineers in SWP. 377/94. SWP 198/93 was filed by the promotee Assistant Engineer (Mechanical) claiming seniority over direct recruits. -4 The High Court in its impugned common judgment dated 14.12.1998 dismissed the petitions filed by the promotees namely SWPs 198/93, 705/94, c 777 /94 and it allowed the writ petitions filed by the direct recruits Assistant Engineers namely SWPs 522/90, 824-B/94, 227/97, 1869/97 and 47/98. The Facts: -4 The following facts are relevant : D There are three wings of Engineers working in the various Deparunents of the Government of Jammu and Kashmir - Mechanical, Electrical and Civil Engineering. These posts in these three wings at various levels are of Junior Engineers, Assistant Engineers and Executive Engineers. The recruiunent to E the posts of Assistant Engineers, as p~r the J.K. Engineering (Gazetted) ~ Service Recruiunent Rules 1978 (hereinafter called the 'Recruiunent Rules, 1978') provided that 20% posts were to be filled by direct recruitment, 60% by promotion of Junior Engineers who had degrees or equivalent qualification with 3 years service and 20% by Diploma holders or those holding post carrying scale of Rs. 340-700/450-700 etc. with IO years service. F In 1987, with a view to remove stagnation, the Government issued two orders one on 29.6.87 and another on 29.10.87, the latter in supercession of the former and re-organised the service as follows : (a) the existing post of Assistant Engineer was upgraded and re-designated as Assistant Executive ... G Engineer, to be kept in charge of a sub-Division. The Assistant Engineer was to work as a Technical officer to the Assistant Executive Engineer in the sub-division and also to the Executive Engineer in each division. All ~- the Diploma holders (S~ction Officers) were to be re-designated as Junior Engineers. In November i987, 1116 posts of Assistant Engineers were created (as held by the High Court) in all the three wings, The Government 'H also issued SRO 209 of 1992 on 4.9.92, amending the Schedule to the S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 817 Recruitment Rules, 1978. The ratio was 20% by direct recruitment, 60% by A promotion by graduate Junior Engineers with 3 years service and 20% by Diploma holder Junior Engineers with 10 years service etc. Thereafter, Government issued a large number of orders and officers at various levels were promoted to the next higher post on an ad hoc basis B for six months. Later Government issued orders continuing these ad hoc/stop gap appointments till regularisation. This was done without consultation of the Public Service Commission as required by Regulation 4(d)(ii) of the Service Commission Regulations, 1957. These orders included some in which several Junior Engineers were promoted as ad hoc Assistant Engineers in the three wings of the Engineering Department (and also related to ad hoc promotions as Assistant Executive Engineers). This was done without following the rules for promotion of the Junior Engineers as Assistant Engineers which required consultation with the J & K Public Service Commission under section 133 of the J.K. Constitution (corresponding to Article 320 of the Constitution of India) or other rules. (The promotion as Assistant Executive Engineer required consultation with DPC). It was case of the direct recruits, that these ad hoc promotions were made not only against the 80% (60% + 20%) quota of the promotees but also in respect of 10% out of the 20% quota c D of direct recruits, in total breach of the quota rule. Direct recruitment was indefinitely delayed to benefit promotee officers and even when it was E initiated, it was restricted to 10%. It appears that the; last direct recruitment in these wings was way back in 1984. It was only on' 23.11.87 that the State Government referred to the State Public Service Commission the matter relating to direct recruitment. But instead of referring the matter of filing up the quota upto 20%, the reference was confined only for 10%. The advertisement was issued by the Commission on 3.12.87. The respondents before us (who were direct recruit writ petitioners ill the writ petitic:ms before the High Court) applied for direct recruitment. But, for a period of 4 years, the commission did not take any steps to make recommendations. The candidates were interviewed during 1992-93 and a list of selected candidates was sent to Government for the 10% quota of direct recruits. It was only after the High Court gave directions on 22.2.94 in certain writ petitions and on other dates in other petitions, that thei-direct recruits were appointed on various dates in 1994 as Assistant· Eri.giu.eers. Some direct recruits were appointed much later. F G H A B c D E F G 818 SUPREME COURT REPORTS [2000] 3 S.C.R. The direct recruits filed the various SWPs 522190, 227/97, 47/98, 1869/ 97, 824-B/94 challenging the a,d hoc promotion of the Assistant Engineers made by Government without consulting the service Commission beyond six months and contended that continuance of a,d hoc stop gap promotion beyond six months (as per the order issued during 1987 to 1996) was not-est and void and could not be subject of regulariSation. The seniority list cannot show these a,d hoc promotees as seniors to direct recruits. There is rota as weil as · quota. They sought the quashing of existing seniority lists and they asked for issuing fresh seniority lists. On the other hand, the promotee officers filed SWP 98/93, 705/94 and 777/94 and in the two latter petitions, the seniority list dated 28.4.94 was questioned to the extent it was favourable to the direct recruits. The High Level Committee : Government appointed a High Level Committee on 21.5.97 to go into the various issues arising between the direct recruits and promotees. On the · three issues. referred, the Committee gave a Report soon thereafter in 1997. It said that merely because the State Government could not make direct recruitment due to inaction, the quota rule could not be said to have broken down. Thereafter, it opined as follows : (1) as and when the direct recruitment was made, the direct recruits would be entitled to placement of their seniority to the vacancies reserved for them as per the ratio. Similarly, where the promotees came to be promoted in accordance with the rules "in excess of their quota'', they could not be given seniority but should be given seniority only from the respective dates on which vacancies in their quota were available; (ii) seniority had to be determined only "from the respective dates on which their respective quota became available· in a particular year' (iii) Qd hoc/stop gap appointment would not entitled an individual to the benefit of seniority from the date of such a,d hoc/stop gap appointment", such service not being according to rules. The period of officiation could not be taken into account for seniori.ry. The Continuous length of a,d hoc service could not be so counted. The order dated 2.1.98 by Government regularising promotees services .without consulting P.S.C. : Ignoring the above report of the above Committee, and without any H recommendation of the Public Services Commission for retrospective regu- I + -4 > S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 819 larisation, the Government issued, during the pendency of the writ petitions, A an order on 2.1.98 so far as the Electrical Wing was concerned, stating that ad hoc service of officers in various categories (starting for Junior Engineers to Superintending Engineers) right from 25.5.73 to 18.4.96 would stand regularised at various levels of the service including Assistant Engineers and Assistant Executive Engineers levels, as a "one time exception". This order B dated 2.1.98 covered several Assistant Engineers in Electrical Wrng wherein ad hoc promotions were made. The regularisation was ordered subject to. (a) The seniority of the officers concerned which will be fixed according to the Rules; (b) The outcome of writ petition, if any, pending in courts. The writ petitions : c The above order dated 2.1.98 was questioned by direct recruits in the High Court along with other seniority lists. It was contended for the direct D recruits before the High Court that there was quota and rota, that the entire ad hoc service was to be treated as non-est, whether it was rendered within the promotion quota or outside the said quotas and stop gap/ad hoc service of promotees could not be regularised at all. But the promotees contended that there was no rota, that the quota rule had broken down and the entire E ad hoc service as Assistant Engineers could be counted or regularised by tl1e Government. 11ze findings of the High Co·u11 : The High Court framed three points for consideration. It held on the first point that promotion to the post in the Gazetted cadre required consultation with the Commission on the question of promotion/transfer from one service to another and also on the suitability of the candidates for appointment, promotion and transfer; that under the J.K. Service Commission, Regulation 4(d)(ii), officiating promotion or transfer to any service or post, should not be for more than six months, unless the Commission was consulted and that the orders for such ad hoc continuance beyond six months and till regularisation, without consultation, were ineffective. It held that the quota rule and not broken down. The posts were advertised in 1987, but it was only F G in 1993, 1994 and in 1998 that the direct recruits were appointed in the three wings, and that in the Civil Mechanical and Electrical Wings 7, 16 and 20 H A B c D E F G 820 SUPREME COURT REPORTS (2000] 3 S.C.R. posts were under excess occupation by the promotees and these posts were not filled by direct recruitment because the Government directed advertisement of only 10% and not 20% for direct recruits. It was held that in SWP 824-B/94 filed by direct recruits, Government filed a reply stating that there was 'quota rota' rule and therefore the said Rule applied. The seniority list dated 28.4.94 in the Mechanical Wing - which was sought to be quashed in SWP 705/94 by the promotees showed that the quota rule had not broken down. The State had not placed before the Court any material to show why it could not make direct recruitment. The excess promotees had to be pushed down and had to be fitted in subsequent vacancies in their quota in later years. On the second point, the High Court held that ad hocpromotions could be made for three months and not more than 9 months under rule 14(1) of the J & K Civil Service (Classification Control and Appeal) Rules, 1956 (read with Regulation 4(d)(ii) of the J & K Public Service Commission (Limitation of Functions) Regulation 1997). Ad hoc service beyond 6 months could not have been continued. But, in view of Regulation 4(d)(ii), "if the exercise of selection of candidates has not been done by the Commission for regularisation" the promotees were not entitled to seniority. Under Rule 8 of the Recruitment Regulations, 1978 probation was to be for 2 years. Hence, ad hoc promotee could not be a 'member' of the service. To claim seniority the promotion could not be de hors the Rules. Conditions of ser\rice could be relaxed but rules of recruitment could not be relaxed. The order of blanket regularisation of the promoted Assistant Engineers dated 2.1.98 for the Electrical Wing passed by the Governn;ient was in violation of Regulation 4( d)(ii) was bad. Such orders passed under executive powers were outside the Rules and were invalid. On the third point, the High Court held that seniority under Rule 11 of the 1978 Rules was to be determined in accordance with Rule 24 of the 1956 Rules on the basis of 'date of first appointment' i.e. date of "substantive appointment or date of permanent appointment or date of first appointment on probation against a clear vacancy". In as much as regularisation of ad hoc promotions by the_ Government on 2.1.98 was ilJegal, the promotees were not members of the service. The order dated 2.1.98 could not have the effect of regularising the entire ad hoc service. The direct recruits could however count their seniority from the date of their substantive appointment within their quota. However, the claims of the promotees whose stop gap promotion exceeded six months without consultation of the Commission should be referred to the Commission "for determining their suitabilH ity". The seniority was to be fixed f6r direct recruits and promotees in terms S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 821 of the quota-rota rule, within their respective quota in the particular year. Stay orders in their Courts : In this Court notice in SLPs was issued on 7.4.1999 and the order of the High Court was stayed. But then a further order was passed on 12.5.99 in IAs. 3 & 4 in SLPs 5329-5330/99 that the stay order dated 7.4.99 did not imply any right to effect promotion during the pendency of the SLPs. It was directed that status quo be maintained. During the course of hearing of the case, at one stage counsel made some efforts 1to 9arrow done the disputes between the two groups by discussion but ultimately all the points arising between the parties were argued elaborately and thoroughly. The written submissions by both parties covered as many as sixty rulings of this Court. Having regard to the vehement argument before us and also in order to explain the various decisions, - which may appear to be apparently conflicting - we have thought it necessary to refer to most of the relevant rulings. This has no doubt added to the volume of this judgment but it could not be helped. On the basis of the various submission, the following points arise for consideration : The. Points : (1) Can the promotees, for recruitment to the gazetted service, avoid A B c D E the Service Commission? Can the Government order that the entire ad hoc/ F stop gap service of Assistant Engineers and Assistant Executive Engineers is to be counted for seniority and can the order of regularisation dated 2.1.98 passed by Government (in respect of the Electrical Wmg) be treated as amounting to an implied n!laxation of the rules of recruitment requiring consultation with the Service Commission? Whether relaxation of recruitG ment rule is permissible? (2) Whether the quota rule had broken down? Whether excess promotees are to be pushed down? Whether there is a quota-rota rule? (3) Whether the ad hoc/stop gap promotion of Assistant Engineers (and H 822 SUPREME COURT REPORTS [2000] 3 S.C.R. A Assistant Executive Engineers) could be made beyond six months and till regularisation, by Government without consulting the Public Service Commission? Whether Government could have regularised the ad hoc service by executive order dated 2.1.98? Whether, the point raised in para IX of written submissions by the direct recruits that retrospective regularisation cannot be B made in respect of the ad'/wc stop gap service and could be made only if the initial appointment as Assistant Engineers or Assistant Executive Engineers was "in accordance with ru1es", is correct? (4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct rectuitment was C available, even though the direct recruit was not appointed by that date and was appointed long thereafter? D (5) To what relief? Point 1 : This point deals with the question whether the promotees can avoid going through the Service Commission for recruitment to the gazetted.cadre? This raises the question of the validity of the order dated 2.1.98 of retrospective regularisation of entire ad hoc service of promotees as Assistant Engi- -< ·•- E neers and Assistant Executive Engineers passed by the Government, (in ~ F G relation to the Electrical Wing) without the approval of the Public Service Commission and whether relaxation can be implied. Question arises whether I it is permissible to relax recruitment rules? Implied relaxation of recruitment rule relating to promotion - plea as to Learned senior counsel appearing for the promotee Assistant Engineers contended that the order dated 2.1.98 regularising the ad hoc/stop gap service passed by Government, even if it be without the concurrence of the Commission, could be treated as one passed by the Government by impliedly "relaxing" the Service Commission Regulation requiring consultation with the Commission. Provisions or Article 320 requiring consultation with the Commission (here Section 1-33 of the J & K Constitution), were not mandatory. When promotees had put in long years of services, it was permissible for the State to relax the recruitment rule and regularise the service outside the PSC Regulations. It was to be deemed there was relaxation. This contention was H contested by the learned senior counsel for the respondents. S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 823 The Rules : For the purpose of the above argument, the promotees relied on the following rules : Rule 13 of the 1978 Recruitment Rules states that in respect of residuary matters, (i.e. 'matters not specifically covered by the said Rules), the members of the service shall be governed by the rules, regulations and orders applicable to the State/Civil Services in general. Therefore, Rules 5 of the J & K Civil Service (CCA) Rules, 1956 is attracted. It permits relaxation of the Rules.