ON Civil Appeal No 149 of 1981
From the Judgment and Order dated 611
1980 of the Punjab and Haryana High Court in CPA No 811 of 1980
MK Ramamurthy UR Lalit Shanti Bhushan MR Sharma PP Rao SK Mehta BR Agarwala ND Garg EMS Anam PP Sharma KS Tiwari CV Subba Rao IS Goel PH Parekh Sohail Dutt Uma Datta and VP Goel for the appear ing 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 1 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 ie prior to their appointment as Assistant Engi neers on regular basis on April 21 1975 along with the six appellants and respondents Nos
5 24 for purposes of reckon ing their eligibility for promotion to the post of Executive Engineer under r6b read with the Explanation thereto of the Haryana Service of Engineers Class I Public Works Department Irrigation Branch 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 re sponse to an advertisement published in the Daily Tribune of February 6 1970 inviting applications for appointment as Temporary Engineers on an ad hoc basis respondent No 1 BS Jain was appointed as a Tem 609 porary Engineer ad hoc wef
January 2 1971 for a period of six months ie after the coming into force of the Har yana Service of Engineers Class II Public Works Department Irrigation Branch Rules 1964  Class II Rules  for short
Prior to this respondents No 2 SL Gupta was also appointed as a Temporary Engineer on an ad hoc basis wef
May 19 1969 by calling his name through the Employment Exchange ie 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 appoint ment 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 Rs400 plus allowances and their 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 Engi neers 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 be 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 set tled by the Commission
The services of respondents Nos 1 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 Irri gation 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 Engi neers on ad hoc basis till the end of the year 1974 ie 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 respond ents Nos 1  2 appeared at a competitive examination along with the appellants and respondents Nos
5 24 and were selected by the Public Service Commission for appointment as Assistant Engineers under the Haryana Service of Engineers Class II Public Works Department Irrigation Branch Rules 1970
In the letter of appointment issued by 610 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 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 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 Engi neers including the appellants and respondents Nos
5 24 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 Engineers
And iii Such of the officers as had not passed the departmental professional and revenue exami nations 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 relax ation of the provisions contained in rr6b and 15 of the Haryana Service of Engineers Class I Public Works Depart ment Irrigation Branch Rules 1964
Presumably the State Government excluded from consideration the case of respond ents Nos 1  2 for promotion because in the combined sen iority list they ranked below the appellants and respondents Nos
5 24 being placed at serial Nos 148 and 150 respec tively
The ad hoc promotion of appellants and respondents Nos 5 24 was assailed by respondents Nos 1  2 by a petition under article 226 of the Constitution filed before the Punjab  Haryana High Court mainly on the ground that when qualified persons like them ie respondents Nos 1  2 were eligible for being considered for promotion to the post of Executive Engineer under r 6b there was no justification whatever for the State Government to grant general relaxation under the proviso 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 condi tion of eligibility under the proviso to r6b read with the Explanation thereof as regards eight years service in the case of promotion of the appellants and respon 611 dents Nos
5 24 as Executive Engineer on an ad hoc basis failed to appreciate that respondents Nos 1  2 who were recruited along with them and had also put in more or less 312 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 articles 14 and 161 of the Constitution
It was also pleaded that the power conferred on the State Government to grant relaxation under r22 was not a general power but a power 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 profes sional and revenue examinations was invalid
It was asserted that the State Government and the Engineer in Chief Irriga tion 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 21 1975 ie the period during which respondents Nos 1  2 remained employed as Temporary Engineers on ad hoc basis could not be treated as period in that class of service within the meaning of r6b ie in Class II service
The specific stand taken by the State Government in the return filed before the High Court was that respondents Nos
1  2 were recruited to the post of Assistant Engineer on April 21 1975 and thus had only about 312 years service on December 20 1978 to their credit when appellants and re spondents 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 hors 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
Further it was pleaded that respondents Nos 1  2 in the seniority list prepared by the Public Service Commission were ranked junior to the appel lants and respondents Nos
5 24 and therefore they were not entitled to be considered for promotion
A learned Single Judge RN Mittal J by his judgment dated 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 advertence to the observations made by him
In his judgment the learned Single Judge repelled the contention of respondents Nos
5 24 for being considered for promo 612 tion since none of them had completed eight years  service as Assistant Engineer on the ground that the State Govern ment was empowered in terms of proviso to r 6b to relax generally in public interest the condition 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 condi tion of eight years  service imposed by r6b had in fact been recorded for reducing the period to 312 years in consultation with the Finance Department
He accordingly held that the ad hoc promotion of the appellants and re spondents 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 bene fit of the period of continuous officiation as Temporary Engineers on an ad hoc basis from January 1971 and May 1969 to April 21 1975 in reckoning eight years  experience in that class of service within the meaning of r6b ie Class II service by reason of Explanation to r 6b and were therefore eligible for promotion to the post of Execu tive Engineer under r 82 in view of the definition of the expression Temporary Engineer  contained in r25 as amended in 1975
He also upheld their contention that the power conferred on the State Government under r22 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 PD Kadian and CP 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 Peti tion 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
Incidentally the judgment of the learned Single Judge leaves untouched the impugned order insofar as it relates to the ad hoc promotion of 37 Assistant 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 Bench PC Jain  CS 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 8312 of the Manual of Administration and therefore the period during which they worked as Temporary Engineers ad hoc could not 613 be taken into consideration
The learned Judges repelled the contention on 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 Nos 5 24 as Executive Engineers on an ad hoc basis on the ground that the State Government could not have relaxed the condition of passing the departmental profes sional 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 sus tained
We are afraid the learned Single Judge was com pletely 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
The 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 to pass such examina tions within a period of one year otherwise they were liable to be reverted to their original post
It must be said in all fairness that learned counsel for respondents Nos 1  2 did not support this part of the Judgment
After having heard learned counselor the parties quite at some length in a heating lasting over several days we feel that irrespective c f the merits of the contentions advanced no useful purpose would be served in maintaining the judgment of the High Court insofar 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 heating we ex pressed our doubts about the wisdom of the High Court in entertaining the Writ Petition of respondents 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 and expressly made subject to the fights of other officers
Instead of interfering with the impugned 614 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 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 Execu tive Engineers 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 promo tions 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 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 conse quence the result has been that the appellants and respond ents 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 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 AS Parmar s vs State of Haryana 1984 2 SCR 476 laying down that a degree in Engineering was not an essential qualification for promotion of Assistant Engineers in the Irrigation Branch to the cadre of Executive Engineers in Class I service under r6b of the Class I Rules and therefore the Assistant Engineers who are diploma holders are equally eligible for such promotion
The State Govern ment in the Public Works Department Irrigation Branch by a notification dated June 22 1984 purported to effect an amendment to r6b of the Class I Rules with a view to nullify the decision of this Court in AS Parmar s case
By a separate judgment in the connected Writ Petitions Nos 630 3284 delivered today we have struck down the impugned notification as offending against articles 14 and 161 of the Constitution and also as ultra vires the State Government by reason of the proviso to s826 of the Punjab Reorganisa tion Act 1966
It appears that the State Government has been treating a degree in Engineering referred to in Cla r6 as an essential qualification for promotion to the post of 615 Executive Engineer in Class I service in the case of offi cers in Class II service presumably on the view expressed by the Punjab  Haryana High Court in OP Bhatia vs State of Haryana ILR The controversy was settled by the decision of this Court in AS Parmar s case and it overruled the decision of the High Court in OP Bhatia s case and held on a consideration of the relevant rules that the qualification of degree in Engineering was not necessary in the case of officers in Class II service for promotion to the post of Executive Engineer
That apart we must deal with the appeal on merits as the judgment of the High Court leaves much to be desired
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 been in employment in the Govern ment service on a purely ad hoc basis de hors the rules that they were entitled upon their absorption to the post on a regular basis to the benefit of the period of their continuous officiation as temporary employees on ad hoc basis for determining their eligibility for promotion to the higher grade or post
The questions presented are whether the principles laid down in NK Chauhan  Ors
vs State of Gujarat  Ors
  and SB Patwardhan  Ors
vs State of Maharashtra  Ors
  reiterated in Baleshwar Das  Ors
vs State of Uttar Pradesh  Ors
 1981 1 SCR 449 and subsequently followed in several deci sions that ordinarily in the absence of any specific rule of seniority governing the cadre or service the length of continuous officiation should be counted in reckoning sen iority as between direct recruits and promotees should also be extended in determining seniority of such adhoc employees vis a vis direct recruits and whether the failure on the part of the Government to count the entire period of offici ation as such ad hoc employees would be per se arbitrary and irrational and thus violative of articles 14 and 161 of the Constitution inasmuch as the 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 exi gencies of the service
It is asserted that the recent pronouncement of this Court in the case of Narendra Chadha  Ors
vs Union of India  Ors
  supports this view
The argument at first blush appears to be plausi ble 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 officiationservice is the only relevant criterion in determining seniority in a particular cadre or grade irrespective of any specific rule of seniority to the contrary
It is necessary to 616 emphasise that the principles laid down in the two leading cases of NK Chauhan and SB Patwardhan reiterated in Baleshwar Das s case and subsequently followed 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 promo tees
These authorities nowhere lay down that the same principle ie the length of continuous officiation must be the sole guiding factor and the only criterion in determin ing 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 dearly in error in holding that the entire period of service of respondents Nos 1  2 as Tempo rary Engineers on ad hoc basis ie the period from January 1971 and May 1969 to April 21 1975 had to be counted not only for purposes of their seniority under r82 of the Class I Rules but also for the purpose of their eligibility for promotion to the post of Executive Engineers under r6b
It is said that the High Court failed to appreciate that respondents Nos
1  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 or under 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 fail within the ambit of the definition of the expression Class II Service  as defined in r 25 as amended in 1975
Secondly the High Court failed to take into account the fact that respondents Nos 1  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 Commission
Till then they did not answer the de scription of Temporary Engineers  as defined in r25
They did not even figure in the notification dated May 18 1982 issued by the State Government under r3 constituting the service of Engineers as Class II service wef December 25 1970
It must therefore logically follow that the serv ice 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 r6b of the Class I Rules
Likewise r82 which speaks of any service rendered as Temporary Engineer must be construed accordingly as meaning service rendered by a Temporary 617 Engineer recruited in the manner provided by the instruc tions contained in Manual of Administration issued under the 1941 Rules or recruited as such under the 1970 Rules
Last ly 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 GP Doval  Ors vs The Chief Secretary Government of Uttar Pradesh  Ors  and Narendra Chadha are of little assist ance
These submissions in our opinion must prevail
In reply the main contention of learned counsel 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 entitled to the benefit of the entire period of officiation as Temporary Engineers on an ad hoc basis ie 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 arbi trary irrational and thus violative of articles 14 and 161 of the Constitution inasmuch as the service rendered by them as Temporary Engineers ad hoc was not 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 principles 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
Secondly he contends that exercise of the power of relaxation of the condition of eight years  service for purposes of eligibili ty conferred on the State Government under the proviso to r6b is conditioned by the obligation to record reasons in writing which requirement was mandatory
There was failure on the part of the Government to record reasons therefor or to indicate any basis to show that such relaxation was in public interest
Further the words Class II Service  in r82 must bear the same meaning as the expression Class II Service  as defined in r25
The artificial definition of Class II Service  introduced by amendment of r 25 in 1975 was obviously to bring persons who were not Assistant Engineers ie members of Class II service within the zone of consideration for purposes of promotion to the post of Executive Engineer under r6b of Class I Rules
Further more the State Government having relaxed the condition of 8 years  service by recourse to the proviso to r6b re spondents Nos 1  2 were similarly situate as  the appel lants and respondents Nos5 24 as they were all recruited together as Assistant Engineers in Class II service in 1975 and they had all rendered about 312 years  service in that class and therefore failure on the part of the State Govern ment to consider the case of
respondents Nos 1  2 for 618 purposes of promotion to the post of Executive Engineer was tantamount to the total exclusion of a class within a class and was thus per se discriminatory
Lastly the action of the State Government in making ad hoc promotion of the appellants and respondents Nos 5 24 was wholly mala fide
Learned counsel wanted us to draw an inference of mala fide from the fact that the Private Secretary to Chief Minister was present at a meeting held in the room of the Irrigation Minister where the list of promotion was settled
It is suggested that initially the names of respondents Nos 1  2 figured in the list but later on wholly extraneous consider ations their names were deleted
It would be convenient at this stage to refer to the relevant provisions of the Punjab Service of Engineers Class I PWD Irrigation Branch Rules 1964 as amended in 1975
The amendment effected in 1975 substituted a new r25 for the existing r25 and it defines the expression Class II Service  as follows 25 Class II Service  shall for the purpose of promotion to the service comprises of members of the Haryana Service of Engi neers Class II Irrigation Branch Temporary Engineers Officiating Sub Divisional Officers and Officiating Assistant Design Engineers except those promoted in excess of the quota fixed under rule 6 of the Haryana Service of Engineers Class II Public Works Department Irrigation Branch Rules 1970
 The qualifications of persons eligible for appointment are prescribed in r6 which is in these terms 6
Qualifications No person shall be ap pointed to the service unless he a Possesses one of the University Degrees or other qualifications prescribed in Appendix B of these Rules Provided that Government may waive this qualification in the case of a particular officer belonging to Class II Service b In case of an appointment by promotion from Class II Service has completed in that class of service for a period of ten years from the commencement of these rules six years service and after that period eight years service 619 Provided that if it appears to be necessary to promote an officer in the public interest the Government may for reasons to be recorded in writing either generally or in any individual case reduce the period of six or eight years to such extent as it may deem proper in consultation with the Finance De partment
Explanation For the purpose of this clause in computing of the period of six or eight years any service rendered as a Temporary Engineer shall be taken into account
We may next set out r8 which deals with the method of promotion 8
Appointment by promotion 1 A Committee consisting of the Chairman of the Public Service Commission and where the Chairman is unable to attend any other member of the Commission representing it the Secretary PWD Irrigation Branch and the Chief Engineer Punjab PWD Irrigation Branch shall be constituted
The Government shall prepare a list of eligible and suitable persons for promotions in order of their seniority in Class II Serv ice which shall be reckoned a in the case of a member of the Haryana Service of Engineers Class 11 Irrigation Branch from the date of his continuous offi ciation as Sub Divisional Officer or Assistant Design Engineer or appointment as Temporary Engineer as the case may be b in the case of a Temporary Engineer from the date of his appointment as such
 As a matter of construction the words Class II serv ice  in r82 introduced by amendment in 1975 must be construed to have the same meaning as the expression Class II service  as defined in r25
We find the language employed by the framers of the rules in the definition clause in r25 has been departed from in the definition of the expression Class II service  and it is generally but not always a fair presumption that the alteration in the language used in the new definition in r25 was intention al
Prior to the amendment in 1975 the expression Class II Service  as defined in r25 meant the members of Class II service including Temporary Engineers
As the State stood 620 in need of many more Executive Engineers it became essential to take steps 3 recruit not only persons who strictly belong to Class II Service proper but also to bring within the zone of consideration others who are not members of Clause II Service eg Offg
Sub Divisional Officers and Offg
Assist ant Design Engineers who would not be so included
The key to the interpretation of the definition clause in r25 is the words for the purpose of promotion
The effect of the enlarged definition of Class II Service in r25 is that these words when found in the Act must for the purpose of promotion be understood in that context in a certain sense ie to include not only members of Class II Service includ ing Temporary Engineers but also Offg
Sub Division Officers and Offg
Assistant Design Engineers who but for the inter pretation clause would not be so included
That would be in consonance with the purpose and object of the amendment
There is reason why the words Class II Service  in r82 introduced in 1975 must bear the same meaning as the expres sion Class II Service  as defined in r25 as both the provisions deal with the same subject ie promotion of members of Class II Service to the post of Executive Engi neer in Class I Service
The mode of promotion to the post of Executive Engineer is as laid down in r82
Now r81 remains unaltered
R81 directs that a committee consist ing of the Chairman of the Public Service Commission or where the Chairman is unable to attend any other member of the Commission representing it Secretary to the
Govern ment PWD Irrigation Branch and the Chief Engineer Punjab Irrigation Branch shall be constituted
Under r82 introduced in 1975 the Government has to prepare a list of eligible and suitable persons for promotion in order of their seniority in Class II Service which shall be reckoned a in the case of a member of the Haryana Service of Engi neers Class II Irrigation Branch from the date of his continuous officiation as Sub Divisional Officer or Assist ant Design Engineer or appointment as Temporary Engineer as the case may be
b In the case of a Temporary Engineer from the date of his appointment as such
These provisions can lead to no other conclusion but that the list of eligi ble and suitable persons for promotion has to be drawn not only comprising of regular members of Class II SerVice including Temporary Engineers in order of their seniority but also of Offg
Sub Divisional Officers or Offg
Assistant Design Engineers in that class of service from the date specified therein
Apparently the requirements of rr81 and 82 have not been complied with
All that exists is the combined seniority list of Assistant Engineers belonging to Class II Service in order of their seniority prepared by the Public Service Commission which incidentally has never been challenged
621 The meaning of the word as  in the collocation of the words any service rendered as a Temporary Engineer  in Explanation to r6b of the Class I Rules must obviously mean in the capacity of 
In Dr Asim Kumar Bose vs Union of India  Ors  the question was whether the appellant who was a Radiologist in the Maulana Azad Medical CoLlege which was a post belonging to Specialist Grade II could be appointed to the post of Professor of Radio Therapy in that College by direct recruitment under r82 of the Central Health Service Amendment Rules 1966
In 1971 there were certain amendments in the Rules prescribing the mode in which the posts of Professor and Associate Professor could be filled in and paragraphs 2b and 3 of Annexure I to the Second Schedule and sub r2a to r8 were inserted which brought about a change
These amend ments brought about a change inasmuch as they provided for a vertical channel of promotion to the teaching post upto the post of Associate Professor
At p363 of the Report this Court referred to the report of the Third Pay Commission where it was observed at p 173 While the Specialists on the teaching side can hold posts of hospital specialists the latter cannot be promoted to teaching posts because of lack of teaching experience Presumably the Ministry of Health on that view held that the word as  in paragraphs 2b and 3 of Annexure I to the Second Schedule and sub r
2a of r8 makes holding of a post in the cadre a condition precedent to the post of a Professor or an Associate Professor
In that context it was observed Normally a Professor or an Additional Profes sor in a medical college or a teaching insti tution can be appointed by direct recruitment from amongst persons holding the post of Associate Professor or Assistant Professor in the concerned speciality in a medical college or a teaching institution having at least six years  teaching experience out of 12 years standing in the Grade through the Union Public Service Commission
An Associate Professor in the medical coLlege or a teaching institution can only be promoted from amongst persons holding the post of Reader or Assistant Pro fessor having at least five years  teaching experience in  the concerned special ity by the Departmental Promotion Committee
We are inclined to the view that the word as in the collocation of the words used at least six years  experience as Associate ProfessorAssistant Profes 622 sorReader in paragraph 2b and of the words at least five years  experience as ReaderAssistant Professor in paragraph 3 and sub rule 2 A of Rule 8 must be interpreted in its ordinary sense as meaning teaching experience gained in the capacity of
In Black s Law Dictionary 5th Edn p 104 the meaning of the word as as given is Used as an adverb etc means like similar to of the same kind in the same manner in the manner in which In Shorter Oxford Diction ary 3rd Edn p 111 the word as is stated to mean The same as in the character capacity role of
In spite of all this the contention of respondents Nos 1  2 that they were entitled to the benefit of the period of service rendered by them as Temporary Engineer on an ad hoc basis wef January 2 1971 and May 19 1969 respectively prior to their appointment as Assistant Engineers on regular basis on April 21 1975 for purposes of reckoning their eligibility under r6b read with the Explanation thereto of the Class I Rules as also for purposes of their seniority in the cadre of Assistant Engineers cannot prevail
They were not recruited under paragraphs 8312 to 8316 of the Manual of Administration Public Works Department
In the erstwhile State of Punjab there was a distinct class of Engineers designated as Temporary Engineers
All persons appointed as Temporary Engineers had to face the Public Service Commission for selection to the post under rr4 and 5 of the Punjab Service of Engineers Class II
PWD Irrigation Branch Rules 1941
Under the Rules the term Temporary Engineer  was defined in r2f to mean an engi neer in the service of the Public Works Department Punjab whose appointment was temporary within the meaning of the Fundamental Rules was pensionable and who was not a member of any regular service
The word service  as defined in r2g of the Rules meant the Punjab Service of Engineers Class II Irrigation Branch
R5 provided that no Temporaty Engineer could be taken into service or member of the Over seers Engineering Service Punjab promoted unless he had been declared by the Commission on the report of the Chief Engineer to be fit for the service was serving the Depart ment and held an appointment for not less than two years continuously before the date of entry into the service
Next came the Punjab Service of Engineers Class II PWD Irrigation Branch Rules 1970
The expression member of service  was defined in r212 to mean an offi cer appointed substantively to a cadre post
The definitions of the word service  and of the term 623 Temporary Engineer  in r215 and 16 remained the same except for the difference that the word temporary  carried the meaning as given in the Civil Service Regulations in place of the Fundamental Rules
R6 provided for the manner of recruitment of Temporary Engineers from different sources in the proportions and the order indicated
Sub r3 thereof provided that in case a candidate was not available from sources 1 and 3 ie by direct recruitment or by promotion and a person had to be appointed in public interest as a stop gap arrangement the period of service rendered by such person shall not be reckoned for the pur pose of seniority
Sub r
4 provided that the Government could fill a short term vacancy in the exigencies of public service after recording specific reasons for the period not exceeding six months from the Overseers Engineering Service Irrigation Branch
It is quite apparent under these rules that appointment of respondents Nos 1  2 as Tempo rary Engineers on an ad hoc basis was de hors the rules
It may seem to be some illogical that though respondents Nos
1  2 were appointed as Temporary Engineers on an ad hoc basis they should be deprived of the period of their 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 conse quence which cannot be avoided on well settled principles
In their case the length of continuous officiation cannot be the basis for reckoning their seniority since they never became members of Class II Service prior to their absorp tion
On the terms of appointment of respondents Nos 1  2 it was specifically provided 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 Rs400 allowances and that their services were liable to be terminated without notice
It was also specifically men tioned that the appointment as such Temporary Engineers on ad hoc basis would not count towards seniority or increment in their salary
It was further stated that the posts of Temporary Engineers in Class II Service would be advertised in due course by the Public Service Commission and that if they were not selected by the Commission their services would be terminated without notice They are also intimated that their inter se seniority among the Temporary Engineers so recruited would be in the order of merit in the list of candidates as settled by the Commission
It is common ground that respondents Nos 1  2 were not recruited through the Public Service Commission
It was not till July 8 1973 that the Secretary to the Commission conveyed to the State Gov ernment the approval of the Commission to the ad hoc ap pointment of 251 624 Temporary Engineers beyond the period of six months till regular appointments were made in the posts of Assistant Engineers through the Commission
These are the facts on which there is no doubt or difficulty as to the principles applicable
According to the accepted canons of service jurispru dence 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 regula tion 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 hold the post on a regular basis as such temporary tenure hardly counts for seniority in any system of service jurisprudence
In somewhat similar circumstances in the case of State of Gujarat vs CG Desai  Ors 1974 2 SCR 255 the question for consideration was whether in the case of Deputy Engi neers directly recruited through the Public Service Commis sion by competitive examination the service if any ren dered by them as officiating Deputy Engineers prior to their appointment to Class II Service ie during the pre selec tion period could be taken into account for purposes of their eligibility for promotion as Executive Engineers under r72 of the Bombay Engineering Service Rules 1960 which provided for a period of 7 years  experience in Class II Service
The Government s stand was that the service ren dered by the direct recruits prior to their appointment to the Class II Service could not be taken into account in computing their eligibility of 7 years  experience in that class of service and the Court upheld the stand
It was contended on behalf of the promotees that if for promotion to the post of Executive Engineer in Class I Service the period of eligibility of 7 years  experience in Class II Service was to start from the date of absorption in that class of service then for most of them there would be rare chance of ever getting promotion as officiating Executive Engineers and as many of them had less than 7 years to go before attaining the age of superannuation
The contention was that r72 of the Rules did not permit discrimination between the promotees and direct recruits in the matter of computing 7 years  service for further promotion as offici ating Executive Engineers
The contention was repelled on the ground that direct recruits and promotees in Class II Service constituted two distinct groups or classes and the classification was based on intelligible differentia and it was observed 625 If a person like any of the respondents to avoid the long tortuous wait leaves his posi tion in the never ending  queue of TemporaryOfficiating Deputy Engineers etc
looking for promotion and takes a short cut through the direct channel to Class II Serv ice he gives up once for all the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits
He cannot after his direct recruit ment claim the benefit of his preselection service and thus have the best of both the worlds
It is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike there can be no question of violation of the constitutional guarantee of equal treatment
 In taking that view the Court avoided a doctrinaire ap proach and approached the problem from a pragmatic view
It was said If the claim of the respondents to the count ing of their pre selection service is conced ed it will create serious complications in running the administration it will result in inequality of treatment rather than in remov ing it
If the pre selection service as Offi ciating Deputy Engineers of direct recruits having such service is taken into account for the purpose of promotion it would create two classes amongst the same group and result in discrimination against those direct recruits who had no such pre selection service to their credit
 It would be repugnant to all accepted concepts of serv ice jurisprudence if the claim of persons like respondents Nos 1  2 who were employed as Temporary Engineers on ad hoc basis de hors the rules for six months at a time were extended the benefit of their continuous officiation as such ad hoc employees in reckoning their seniority vis a vis direct recruits in considering their eligibility under r6b of the Class I Rules for promotion to a higher grade or post of Executive Engineer
In APM Mayakutty etc
vs Secretary Public Service Department the question was whether the period of service rendered by such ad hoc employees appointed under r 10a i1 of the Madras State  Subordinate Services Rules purely on an ad hoc basis and as matter of stop gap arrangement were enti tled to count for the purpose of seniority their period of service on ad hoc basis during which they served in a stop gap arrangement
It was held 626 that such service could not be taken into account for the purpose of seniority from the date of their initial appoint ment
The Court speaking through Chandrachud CJ
after referring to the provision contained in r 10ai1 of the Rules stated This provision contemplates the making of temporary appointments when it is necessary in the public interest to do so to an emergency owing which has arisen for filling a vacancy immediately
Such appointments in terms are permitted to made otherwise than in accordance with the rules
The letters of appointment issued to the appellants mention expressly that they were appointed under rule 10ai1 that the appointments were purely temporary necessitated on account of the non availability of regularly selected candidates conferring no claim for future appointment as Junior Engineers  and that the appointment is liable to be terminat ed at any time without previous notice
 In face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants were appointed purely as a matter of stop gap or emergency arrangement
Since such service cannot be taken into ac count for purposes of seniority the appel lants cannot contend that the entire service rendered by them from the date of their ini tial appointment must count for purposes of seniority
 The Court distinguished the case of CP Damodaran Nayar vs State of Kerala  Ors  on the ground that the temporary service rendered by a District Munsiff re cruited in a regular manner through the Public Service Commission could not by any stretch of imagination be considered to be purely as a matter of fortuitous or stop gap arrangement
The distinguishing features in Mayakutty s case in the words of Chandrachud CJ
were The distinguishing feature of that case which is highlighted in the judgment of the Court is that the appellant therein was appointed in a regular manner through the Public Service Commission and therefore his appointment could not by any stretch of imagination be described as having been made to fill a purely stop gap or fortuitous vacu um
In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appellants  627 appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop gap arrange ment
The concurrence of the Public Service Commission to the continuance of the appel lants in the posts filled by them first after the expiry of three months and then after the expiry of one year was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year
 That precisely is the case here
It must therefore be held that the period of service rendered by persons like respond ents Nos 1  2 who were appointed on ad hoc basis purely as a stop gap arrangement for six months at a time de hors the rules cannot be considered for purposes of their seniority in Class II Service or in reckoning their eligibility of 8 years  service in that class of service under r6b of Class I Rules
We feel it necessary to emphasise that the principles laid down by this Court in the two cases of NK Chauhan and SB Patwardhan which were reiterated in Baleshwar Das s case and subsequently followed in several other cases do not lay down any principle to the contrary
These cases are not an authority for the proposition relied upon
On the con trary 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 those who are appointed to posts in the service in strict conformity with the rules of recruitment
In the case of SB Patwardhan Chandrachud CJ
observed We however hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees
All other factors being equal continuous officiation in a non fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources so long as they belong to the same cadre 628 discharge similar functions and bear similar responsibilities
 In Baleshwar Das s case Krishna lyer J affirmed the principle in his own charismatic and picturesque language We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants keeping posts temporary for long sometimes by annual renewals for several years and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary especially when both temporary and permanent appointees are func tionally identified
If in the normal course a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity there cannot be any thing unfair or capricious in clothing him with no fights
Not so if the post is for certain departmental or like purposes de clared temporary but it is within the ken of both the government and the appointee that the temporary posts are virtually long lived
It is irrational to reject the claim of the temporary  appointee on the nominal score of the terminology of the post
We must also express emphatically that the principle which has received the sanction of this Court s pronouncements is that officiating service in a post is for all practical purposes of sen iority as good as service on a regular basis
It may be permissible within limits for government to ignore officiating service and count only regular service when claims of seniority come before it provided the rules in that regard are clear and categories and do not admit of any ambiguity and cruelly arbi trary cut off of long years of service does not take place or there is functionally and qualitatively substantial difference in the service rendered in the two types of posts
While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309 even so such rules have to be reasona ble fair and not grossly unjust if they are to survive the test of Articles 14 and 16
 We must also refer to the decision in A Janardana vs Union of India  Ors 1 where Desai J had occasion to observe 629 In other words after having rendered service in a post included in the service he is hanging outside the service without finding a berth in service whereas direct recruits of 1976 have found their place and berth in the service
This is the situation that stares into one s face while interpreting the quota rota rule and its
impact on the service of an individual
But avoiding any humanitarian approach to the problem we shall strictly go by the relevant Rules and precedents and the impact of the Rules on the members of the service and determine whether the impugned seniority list is valid or not
But having done that we do propose to examine and expose an extremely undesirable unjust and inequita ble situation emerging in service jurispru dence from the precedents namely that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian if not in embryo when the promotee on being promoted on account of the exigencies of service as re quired by the Government started rendering service
A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation
 To the same effect are the decisions in OP Singla vs Union of India   GS Larnba vs Union of India  PS Mahal vs Union of India  and Pran Krishna Goswami  Ors
vs State of West Bengal  Ors
  It must now be taken as well established after these decisions that 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 appoint ment is held in a purely stop gap or fortuitous arrangement
No doubt there are certain observations in the two cases of GP Doral and Narender Chadha which seem to run counter to the view we have taken but these deci sions turned on their own peculiar facts and are therefore clearly distinguishable and they do not lay down any rule of universal application
For all these reasons the appeal succeeds and is al lowed
The judgment and order of the High Court quashing the impugned notification of the State Government dated December 20 1978 making 630 ad hoc promotions of the appellants and respondents Nos
5 24 are set aside
Instead we direct that the impugned order of the State Government making ad hoc promotions of 62 Assistant Engineers including the appellants and respondents Nos 5 24 as officiating Executive Engineers will stand and they shall continue to function as such subject to the terms and conditions contained in the aforesaid order till the process of making appointments by promotion to these posts is completed
We hope and trust that the State Govern ment will strike a just balance between the competing claims of these 62 Assistant Engineers promoted as Executive Engi neers on ad hoc basis and persons like respondents Nos 1  2 appointed as Temporary Engineers on an ad hoc basis who could at the most claim that they should be given the bene fit of the period of service from April 21 1975 when they were recruited as Assistant Engineers through the Public Service Commission provided they satisfy the test of eligi bility of 8 years  experience in that class of service while considering the cases of all eligible members of Class II Service for promotion to the post of Executive Engineer in Class I Service in accordance with law and will complete the process of appointment within six months from today
There shall be no order as to costs
SR Appeal allowed


Summary:
Haryana Service of Engineers Class II Public Works Department Irrigation Branch Rules relating to recruitment etc
of Asst
Engineers and Haryana Service of Engineers Class I Public Works Department Irrigation Branch relat ing to Executive Engineers came into force in 1970 and 1964 respectively
Respondent No 2 BL Gupta and Respondents Nos
BS Jain were appointed as temporary engineers ad hoc with effect from 1951969 and 211971 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 appoint ment issued to them it was specified i that their appoint ment 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 Rs400 plus allowances and their services were terminable without notice ii 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 iii that the posts of Tempor 604 ary Engineers in Class II service would be advertised in the 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 be liable to be terminated without notice and iv 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 1 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 Irri gation 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 Engi neers on ad hoc basis till the end of the year 1974 ie till they were recruited as Asst
Engineers through the Public Service Commission on April 21 1975 on regular basis
In the letter of appointment issued by the Commis sioner 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 by the Public Service Commission
In the combined merit list prepared by the Commission respondents Nos 1 and 2 were placed 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 appel lants and respondent Nos
5 24 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 Commis sion 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 Engi neers and iii such of the officers as had not passed the departmental professional and revenue examinations 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 provi sions contained in rr 6b and 15 of the Haryana Service of Engineers Class I Public Works Department irrigation Branch Rules 1964
Presumably the State Government ex cluded from consideration the case of respondents Nos 1 and 2 for 605 promotion because in the combined seniority list they ranked below the appellants and respondents Nos
5 24 being placed at serial Nos
I48 and 150 respectively
The said ad hoc promotions to Class I posts were as sailed by respondents I and 2 by a petition under Article 226
A learned Single Judge by his judgment dated 8101980 quashed the impugned order of 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 6111980
The appel lants  contention that the appointment of respondents Nos
I and 2 as Temporary Engineers on an ad hoc basis was contrary to para 8312 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 on the ground that no such point was taken before the learned Single Judge
Hence the appeal by special leave
Allowing the appeal the Court HELD 1
The High Court ought not to have exercised their powers under Article 226 of the Constitution and entertained the writ petition of respondents I and 2 partic ularly 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 consid er the cases of the eligible officers including respondents Nos
I 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 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
613G H 614A C 12 Rule 15 of the PunjabHaryana Service of Engineers Class I PWD Irrigation Branch Rules 1970 in terms provides that the 606 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
The word prescribed  in Rule 15 clearly empowers the State Govern ment 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 pro fessional 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
There fore no question of relaxation under Rule 22 arose
613C E 21 The period of service rendered by persons like respondents Nos 1 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 purposes of their seniority in Class II service or in reckoning their eligi bility of 8 years  service in that class of service under Rule 6b of the Class I Rules
625F G 22
As a matter of construction the words Class II service in Rule 82 introduced by amendment in 1975 must be construed to have the same meaning as the expression Class II service as defined in Rule 25
Prior to the amendment in 1975 the expression Class II Service as defined in Rule 25 meant the members of Class II service including Temporary Engineers
The key to the interpretation of the definition clause in Rule 25 is the words for the purpose of promotion
 The effect of the enlarged definition of Class II service in Rule 25 is that these words when found in the Act must for the purpose of promotion be understood in that context in a certain sense ie to in clude not only members of CIass II Service including Tempo rary Engineers but also Offg
Sub Division Officers and Offg
Assistant Design Engineers who but for the interpre tation clause would not be so included
That would be in consonance with the purpose and object of the amendment
619G H 620B C 23 The meaning of the word as in the collocation of the words any service rendered as a Temporary Engineer in Explanation to Rule 6b of the Class I Rules must obviously mean in the capacity of
621A B Dr Asim Kumar Bose vs Union of India  Ors
   applied
24 It is true that though respondents Nos 1 and 2 were 607 appointed as Temporary Engineers on an ad hoc basis they should be deprived of the period of their officiation as such till they were absorbed to the post of Assistant Engi neer on a regular basis through the Public Service Commis sion on April 21 1975
That is a legal consequence which cannot be avoided on well settled principles
623D E 25 According to the accepted cannos of service juris prudence 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 ap pointment 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 tempo rary or stop gap basis cannot be taken into account for the purpose of seniority even if the appointee was qualified to hold the post on a regular basis as such temporary tenure hardly counts for seniority in any system of service juris prudence
624B D 26 It must now be well taken as well established that after the Supreme Court decisions from NK Chauhan to Baleswar 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 ie the length of continuous offi ciation must be the sole guiding factor and the only crite rion 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 those who are appointed to posts in the service in strict conform ity with the rules of recruitment
629E G 627E F NK Chauhan  Ors
vs State of Gujarat  Ors
   SB Patwardhan  Ors
vs State of Maharashtra  Ors
  and Baleshwar Das  Ors
vs State of Uttar Pradesh  Ors
 1981 1 SCR 449 discussed
608 APM Mayakutty etc
vs Secretary Public Service Department  State of Gujarat vs
CG Desai Ors
   OP Singla vs Union of India   GS Lamba vs Union of India  PS Mahal vs Union of India   and Pran Krishna Goswami  Ors
vs State of West Bengal  Ors
   referred to
Narendra Chadha  Ors
vs Union of India  Ors
   GP Doval  Ors
vs The Chief Secretary Govern ment of Uttar Pradesh  Ors   and CP Damodaran Nayar vs State of Kerala  Ors   distinguished