ivil Appeal No 931 of 1986
From the Judgment and Order dated 3101985 of the Madhya Pradesh High Court in Civil Misc
WP No 15 10 of 1981
PN Lekhi MK Garg Aman Lekhi and Lokesh Kumar for the appellants
RB Datar Sakesh Kumar Uma Nath Singh Satish K Agnihotri and Ashok Singh for the respondents
The Judgment of the Court was delivered by 133 SAWANT J
The two appellants in this case had joined the service in the Public Works Department of the respond ent Madhya Pradesh State as Overseers
They were thereafter appointed as Junior Engineers by direct recruitment the first appellant on August 29 1969 and the second appellant on September 12 1969
Although the High Court in its im pugned judgment has stated that they were promoted as Junior Engineers from the posts of Overseers it appears that that statement is not correct since their orders of appointment to the post of Junior Engineer which are Annexures P 1 and P 2 to the writ petition filed in the High Court show that their appointments as Junior Engineers were not by way of promotion
This however makes no difference to the issues involved in the present appeal
We have stated it to keep the record straight
The grievance of the appellants is with regard to their seniority in the next promotional post viz that of Assistant Engineer
The Recruitment Rules which govern the said promo tional post are known as Madhya Pradesh PWD Gazetted Recruitment Rules 1969 hereinafter referred to as the Rules 
According to these Rules Junior Engineers Over seers Head Draftsmen and Draftsmen are eligible to be considered for promotion to the post of Assistant Engineer on their securing the requisite experience
Each of these categories further has a fixed quota of its own
The Depart mental Promotion Committee DPC to be short whose con stitution is also prescribed in these Rules is required to consider the names of all the eligible candidates on merits and judge their suitability in all respects on merit cum seniority basis
The DPC is also required to arrange the names of all the selected candidates ordinarily in the order of their seniority unless a junior is exceptionally merito rious in which case of course he is given a higher number in the selection list
This list is then sent through the State Government to the Public Service Commission for its consideration and approval
The list as approved by the Commission then becomes the select list and promotions are made from this list in the same order as is arranged in the list
However in case of an administrative exigency the State Government is given power to appoint anyone not in cluded in the said list if the vacancy is not likely to last for more than three months
Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer a Junior Engineer has to have an experience of two years as Junior Engineer
It appears that the State Government wanted a certain 134 number of Assistant Engineers but enough number of Junior Engineers with requisite qualifying service were not avail able at the relevant time
Admittedly the appellants were two of such unqualified Junior Engineers since they had not completed their two years  qualified service as Junior Engineers at the relevant time
Hence taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 191 of the said Rules the Government promoted some Junior Engineers including both the appellants as Assistant Engineers on July 22 1971 on purely ad hoc basis
In the order appointing then it was stated as follows Since adequate number of Junior Engineers with requisite qualify ing service are not available for appointment as Assistant Engineers and but for these promotions large number of Assistant Engineers  posts would remain vacant adversely affecting the construction work     
These appointments will not be deemed to determine seniority as Assistant Engineer for any purpose whatsoever
It is not disputed that on July 22 1971 when the appellants were so appointed as Assistant Engineers on ad hoc basis appellant No 1 was short of two years  qualify ing service period by one month and appellant No 2 by two months
They became qualified on August 22 1971 and on September 11 1971 respectively
It appears that while the appellants continued to act as Assistant Engineers on ad hoc basis on August 7 1972
respondents 40 to 63 were appointed as Assistant Engineers by direct recruitment
Thereafter on November 22 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the DPC
On the same date the State Government issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No 1 was shown at Serial No 14 and appellant No 2 at Serial No 28
The State Government thereafter prepared a seniority list of Assistant Engineers which reflected the seniority of appellants as having been appointed on and from November 22 1972 and as per the ranking given in the said order of November 22 1972
The appellants challenged the seniority list before the High Court by a writ petition
Although it appears the appellants had also joined to the petition those Junior Engineers who were promoted as Assistant Engi neers along with the appellants by the same order and whose seniority in the list had reflected their placement in the order of appointment the challenge to the seniority of those Junior Engineers was given up at the time of the arguments before the High Court and it was confined to the seniority of respondents 2 to 39 who were Overseers and were selected by the DPC 135 from their own quota as Assistant Engineers along with the appellants and to the seniority of respondents 40 to 63 who were appointed by direct recruitment on August 7 1972
The first challenge common to the seniority of all the respondents 2 to 63 was based on the contention that the appellants  ad hoc service as Assistant Engineers from July 22 1971 when they were promoted on ad hoc basis to Novem ber 22 1972 on which date they were selected as regular appointees was not taken into account
The second challenge was confined to the seniority given to respondents 2 to 39 by giving them a weightage of their experience as Overseers
The High Court negatived both the challenges and dismissed the writ petition
Hence the present appeal
The same contentions which were advanced before the High Court was advanced before us
We will therefore first examine the grievance that the ad hoc service of the appel lants was not counted for the purpose of the appellants  seniority
A heavy reliance is placed on behalf of the appellants on the decision of this Court reported in Balesh war Dass  Ors
vs State of UP  Ors etc
 1981 1 SCR 449 in support of the contention that ad hoc officia tion is entitled to be counted for the purpose of seniority
The ratio of the said decision however is not applicable to the present case
In that case there was no dispute that the temporary appointees to the posts who were claiming benefit of their temporary appointment or officiation were qualified to be appointed to the posts when they were initially ap pointed
 All the procedural formalities of their appoint ments were also followed namely they had completed their probationary period the Public Service Commission had given its approval and they had also been medically examined and found it
No rule was breached in making their appointment
The vacancies to which they were appointed were also sub stantive vacancies
Their appointments however had contin ued for a number of years although there was no obstacle whatsoever in making them regular or permanent
All that had remained to be done was the issuance of a format order of regularisation of the appointment which for unexplained reasons the Govt
had failed to do for a number of years
The Court therefore observed that a post of short duration say of a few months is different from another which is terminologically temporary but is kept on for 10 or more years under the head temporary for budgetary or other technical reasons
Those who are appointed and hold tempo rary posts of the latter category are also members of the service provided they have been appointed substantively to that temporary post
A 136 little later the Court made further observations in this connection as follows Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary
If it is not the further point to notice is as to whether the appointments are regular and not in viola tion of any rule whether the Public Service Commission s approval has been obtained and whether probation medical fitness etc are complete
Once these formalities are complete the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority
For other purposes they may remain temporary   
The normal rule consistent with equity is that officiating service even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist
We see nothing in the scheme of the Rules contrary to that principle
Therefore the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary but who for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant   Emphasis supplied It will thus be seen that in that case the appointments to the substantive vacancies were made according to rules after complying with the procedure for regular appointment
There was no requirement of the Recruitment Rules which was left to be complied with
In our case unless the DPC makes the selection none can be appointed as Assistant Engineer regularly
Similar were the facts in the case of GP Doral  Ors
vs Chief Secretary Government of U P  Ors  in that case the petitioners were temporarily appointed as Khandsari Inspectors having been selected in the departmental competitive test and interview
Their appointments were however subject to final selection by Public Service Commission at a later date
Some of the respondents 137 were also appointed to the same posts subsequently in the same manner
The names of these recruits were later forward ed to the Public Service Commission which accorded its approval to their appointments
The Department drew up a provisional seniority list on the basis of the recommenda tions of the said Commission by taking the date of approvalselection by the Commission in respect of each candidate as the basis for determining the length of contin uous officiation
The Department supported its action on the ground that it had prepared the list by reckoning seniority from the date of their substantive appointments in accord ance with an earlier Government Order of 1940 which pre scribed certain guidelines or model rules for framing rules governing conditions of service
The model set out in the order suggested two independent principles for determining seniority namely i the date of substantive appointment and ii the date of the order of first appointment if such appointment is followed by confirmation
In the seniority list the petitioners were placed below the respondents though they were initially appointed prior to the respond ents
This Court quashed the seniority list holding that the question as to from what date the service is to be reckoned will depend upon the facts and circumstances of each case
It was observed there that Where officiating appointment is followed by confirmation unless a contrary rule is shown the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list
If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular then in the absence of the contrary rule the approval which means confirmation by the authority which had the authority power and jurisdiction to make appointment or recommend for appointment will relate back to the date on which first appointment is made   
If a stopgap ap pointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected there is no justification for ignoring his past service
At any rate there is no justification for two persons selected in the same manner being differently treated emphasis ours The Court also found there that the earlier order of 1940 had not prescribed any binding rule of seniority and assum ing that it did the 138 seniority list did not conform to the model
The model set out in the Government Order prescribed two different start ing points for reckoning seniority and it was difficult to assume that the department adopted one and rejected the other without making a specific rule in that behalf
It will thus be clear that the Court was dealing with an altogether different situation in both the aforesaid cases
There was no dispute in those cases that except for the terminology and nomenclature there was no distinction be tween a temporary and permanent appointment and all that remained to be done in those cases was the formalisation of the appointments
That is not the situation in the present case
The appellants were ineligible to be appointed as Assistant Engineers initially
Their appointments were made specifically under the power given to the Government to make ad hoc appointments for administrative exigency
The ap pointment orders made it clear that the appointments were in the said special circumstances and that they will not be deemed to determine seniority for any purpose whatsoever
There is further no dispute that no appointments could be made as Assistant Engineers except by way of either direct recruitment through the Public Service Commission or promo tion through the selection made by the DPC as per the quota assigned to different categories
The first DPC which met for selection after the appellants became quali fied for being promoted was held on October 12 1972
It is in this meeting that the appellants were selected along with the other qualified promotees namely respondents 2 to 39
The DPC further had the power also to arrange the senior ity of the promotees according to merits
For all purposes therefore the appointment of the appellants on July 22 1971 was ad hoc and not according to rules
Their selectionappointment on November 22 1972 by the DPC was further not a mere formality or a process undertaken only for formalisation of their earlier appointment
In the circumstances their appointment on November 22 1972 could not relate back to July 22 1971 and hence they were not entitled to claim their officiation between July 22 1971 and November 22 1972 for being counted for the purposes of their seniority for placing them either above respondents 40 to 63 who were directly recruited on August 7 1972 or above respondents 2 to 39 who were promoted by the DPC along with them on November 22 1972 and who happened to be senior to them even as Junior Engineers
The other leg of the aforesaid contention was that the appellants were appointed under Rule 74 of the said Rules and not under 139 the proviso to Rule 19 of the Rules inasmuch as under the latter provision their appointments could not have been made
The argument was that the latter provision permitted appointments for an administrative exigency only in vacan cies which did not last for more than three months
Since the appellants continued in the post for more than a year before they were selected on November 22 1972 it should be held that their appointment was under Rule 74 of the Rules
As has been pointed out by the High Court the re course to Rule 74 is unwarranted because that provision deals with the method of recruitment and permits the State Government to adopt any method other than those provided there
One of the methods permitted by that provision admit tedly is promotion and since the appellants were admittedly promoted though they were not qualified on that date their case would not be covered by the third method of recruitment which is other than the one prescribed there
Therefore the argument that they should be considered to have been re cruited to the post of Assistant Engineer by a method other than that expressly provided by the said Rule 74 is only to be stated to be rejected
Once it is held that they were promoted on ad hoc basis what comes in the play is the proviso to Rule 191 which permitted the Government to make such ad hoc appointments for purely administrative exigen cies
It was then contended that since the proviso to Rule 191 permitted appointments in vacancies which were to last for more than three months it should be held that after the appellants became eligible during the first three months of their appointment their further continuation was on regular basis
This argument has also no substance in it for as pointed out earlier for being selected for appointment as Assistant Engineers the appellants had to face the DPC and the Government had no power to make regular appointments to the said post unless the DPC had selected the candi dates for the posts
Secondly the proviso to Rule 191 has to be read liberally
The said provision has to be inter preted to mean that the appointments under the said provi sion can be made for three months at a time
Thus there was nothing to prevent the State Government from renewing the appointment of the appellants every three months
The second contention is directed against the senior ity of respondents 2 to 39 and proceeds on the ground that the weightage given to them is illegal
This contention must also fail for the following reasons
Admittedly the Rules of Recruitment prescribe appointments to the post of Assistant Engineer from two sources namely i by direct recruitment and ii by promotion in the proportion of 50 50 140 The promotional posts are further required to be filled in from three different cadres in the following proportion i 25 from Junior Engineers ii 20 from Overseers iii 5 from Head DraftsmenDraftsmen
Under the Madhya Pradesh PWD non gazetted Recruitment Rules of 1972 hereinafter referred to as 1972 Rules the Overseers who acquire an Engineering degree or qualify for AMIE become eligible for promotion to the post of Junior Engineers as soon as the vacancy arises
The inter se sen iority between the Overseers and the Junior Engineers in the cadre of Junior Engineers is to be fixed in accordance with Rule 143 of the said Rules by giving weightage of two months for every year of their service to the Overseers
When the DPC met on October 12 1972 and considered the cases both of the appellants and the respondents the Com mittee had submitted the names of the selected candidates cadre wise ie separately of Junior Engineers Overseers Head DraftsmenDraftsmen
The General Administration Depart ment thereafter considered the matter
Under the Rules the Overseers were required to obtain an Engineering degree or qualify for AMIE and were also required to serve for 12 years as Overseers to become eligible for being considered for appointment as Assistant Engineers
As against this the Junior Engineers who were degree holders were required to serve only for two years to become eligible for being con sidered to the said post
Taking these aspects into consid eration their inter se seniority namely the interse sen iority of the appellants and the Overseers promotee respon deets was fixed by the Government according to the following formula which was in vogue for a number of years a In the cadre of Junior Engineers Overseers so promoted were given weightage as per Rules of 1972 and promotional dates for seniority in the cadre were fixed accordingly
b In the cadre of Assistant Engineers the date of reckon ing of seniority was the one on which Junior Engineer or Overseer or Head DraftsmanDraftsman completed the respec tive span of service for eligibility
Hence when seniority was fixed as per the impugned seniori ty list of 141 the cadre of Assistant Engineers when admittedly the Rules of 1972 were in vogue it was fixed according to the afore said formula
There is no dispute that according to the said formula which can hardly be faulted respondents 2 to 39 who were senior as Junior Engineers were entitled to sen iority over the appellants
It may further be pointed out that the Rules of 1972 were not challenged either before the High Court or before us
All that was challenged before the High Court was that these Rules were restricted in their application only to the promotions made to the post of Junior Engineers and were not applicable to the promotions made to the post of Assistant Engineers
On the face of it such a challenge is meaningless because Rule 14 of the said Rules is clearly meant for the promotions to the post of Assistant Engineers
Otherwise the seniority given to the Overseers etc
in the seniority list of Junior Engineers on the basis of the their service as Overseers is meaningless
For all these reasons we find no substance in this conten tion either
We therefore confirm the decision of the High Court and dismiss the appeal
There will however be no order as to costs
R NJ Appeal dismissed


Summary:
Paragraph 516 B of the Manual for the Superintendence and Management of Jails in Punjab provides for premature release of prisoners
The State Government had issued in structions in 1971 modifying the executive instructions in paragraph 516B to the effect that a convict must have undergone 8 12 years of substantive sentence before his case could be submitted to the Government for consideration
Again there was another executive instruction in 1976 which provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment would not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment
Paragraph 631 of the said Manual relates to remission of sentences
The note below paragraph 631 reproduces the gist of paragraph 516 B Going by the preface of the Manual paragraph 631 has statutory force whereas paragraph 5 16B being in the nature of executive instruction has no statutory force
The respondents filed Criminal Writ Petitions before the High Court praying for their premature release on the basis that the note under paragraph 631 has statutory force the executive instructions issued in 1971 and 1976 have to be ignored and that the Jail Superintendent was bound to submit their cases to the Government for premature release
148 The High Court allowed the claim of the respondents and held that the executive instructions issued in 1971 and 1976 being in conflict with the statutory note must give way to the latter
These appeals by special leave preferred by the State Government challenge the High Court s decision on the ground that the source of paragraphs 516 and the note at the foot of paragraph 631 being the same viz resolution dated 6th September 1905 it cannot be concluded that the note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and in case of conflict between the two the note which is statutory in character must prevail
Allowing the appeals this Court HELD 1 Remissions by way of reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Criminal Procedure Code or in exercise of constitutional power under Article 72161 of the Constitu tion
Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code subject of course to Section 433A or where the clemency power under the Constitution is in voked
The power under Articles 72 and 161 of the Constitu tion is absolute and cannot be lettered by any statutory provision such as Sections 432 433 and 433A of the Code
This power cannot be altered modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules
153H 154A C 2
Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences
If the sentence is of imprisonment for life ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 Cr
PC carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment
Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years
In the case of other lifers  the insistence under the 1971 amendment is that he should have a period of atleast 8 12 years of incarceration before release
The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code
Since Section 433A is prospective so also 149 would be the 1971 and 1976 amendments
154E H Gopal Vinayak Godse vs State of Maharashtra  and Maru Ram vs Union of India   relied on
According to the preface only those paragraphs which are blacklined have statutory character
The note in ques tion is not so blacklined
The source of paragraph 516B and the note is the very same Resolution No 159 167 of the Government of India dated 6th September 1905
It is diffi cult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in anoth er
The marginal note to the Note in question in terms refers to paragraph 516 B which means it was merely a repro duction of the latter paragraph
In the circumstances if the note was intended to be conferred a statutory character it would have been blacklined in keeping with the scheme of the Manual
Paragraph 631 classifies prisoners and fixes the duration of their sentences eg 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison ers
The note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule paragraph 5 16B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under paragraph 516B
It is therefore clear that the note is neither an integral part of paragraph 631 nor does it have statutory flavour as held by the High Court
155B F