Appeal No4375 OF 1991
From the Judgment and Order dated 391990 of the Karna taka Administrative Tribunal Bangalore in Application No 2564 of 1989
MK Ramamurthy section Ravindra KV Mohan and SR Bhat for the Appellant
Raju Ramachandran M Veerappa and Kh
Nobin Singh NP for the Respondents
The Judgment of the Court was delivered AHMADI J
Special leave granted
The controversy which we are required to resolve in this appeal by special leave is regarding the appellant s senior ity vis a vis respondents Nos3 to 7
The factual background which has given rise to this controversy briefly stated is as under In the year 1966 posts of Junior Engineer Mechanical were created in the Department of Mines and Geology Ground Water Surveys and Drilling Unit of the State of Karnataka
The appellant who was then working as a Rigman in the Drill ing Unit of the Department was appointed Junior Engineer Mechanical in the scale of Rs 200 375 on one of the said posts by an order dated 14th August 1967 issued by the Director of the department
Subsequently he was regularly recruited through the State Public Service Commission in the said post wef 4th May 1970
However even though the Director had requested the State Government to frame Re cruitment Rules for the newly created post immediately after its creation the Recruitment Rules were not finalised till the issuance of a Notification dated 26th June 1973
Before the appellant was regularly recruited through the State Public Service Commission in the year 1970 the Director had apprised the Government of the action which he proposed to 602 take to fill up the post
The appointment order was issued after the Public Service Commission had advertised the post and had selected persons for appointment to the said posts
The appellant was initially appointed on probation for one year and on his satisfactorily completing the probation period he was continued in service and was later confirmed in the said post by an order dated 13th June 1974 wef 29th September 1972
Respondents Nos 3 to 7 entered service as Drillers in 1964 65
The appellant and the respondents Nos
3 to 7 were promoted as Assistant Drilling Engineers by the Director s order dated 16th December 1974
The Office Order No67674 75 shows that the appellant and one another were working as Junior Engineers at the relevant time whereas respondents Nos
3 to 7 were working as Drillers before their promotions as Assistant Drilling Engineers
The State Government did not approve of the Director s action in promoting the appellant since he was a local candidate and directed that he be reverted
However no such reversion took place
The State Government also did not take any further action
The appellant was shown senior to respond ents Nos 3 to 7 in the said cadre of Assistant Drilling Engineers
The appellant was subsequently promoted by the State Government to the next higher post of Drilling Engi neer in 1980 and further as Chief Drilling Engineer in 1984 which post he was holding at the date when his seniority came to be disturbed
The appellant was throughout shown senior to respondents Nos
3 to 7 till the revised provi sional seniority list in regard to the cadre of Assistant Drilling Engineers was published on 31st December 1987
Since objections were invited the appellant objected to his being shown junior to respondents Nos3 to 7 but to no avail
Even in the final seniority list dated 4th May 1989 he was shown junior to respondents Nos 3 to 7
Respondents Nos3 to 7 were shown in both the provisional and final seniority list at Serial Nos1 to 5 whereas the appellant was shown at Serial No6
Thus for the first time since his regular appointment in the year 1970 he was shown junior to respondents Nos 3 to 7 under the provisional seniority list issued in 1987 and the final seniority sen iority list issued in 1989
The appellant therefore chal lenged the provisional seniority list as well as the final seniority list by an Application No 2564 of 1989 preferred to the Karnataka Administrative Tribunal
The Tribunal by its order dated 3rd September 1990 rejected his application holding that his initial entry into service as a Junior Engineer was itself irregular and since he did not have the requisite experience of three years as a regular incumbent he was not qualified to be promoted to the next higher post of Assistant Drilling Engineer because his regular employ ment could only be related from the date of framing of the Recruitment Rules for the adre which came to be notified on 23rd August 1973
In this view of 603 the matter the Tribunal held that the service of the appel lant from 4th May 1970 to 23rd August 1973 could not be taken into consideration for the purpose of determining his inter se seniority vis a vis respondents Nos 3 to 7
The appellant feeling aggrieved by the dismissal of his applica tion has approached this Court under Article 136 of the Constitution
The appellant contends that the order of the Tribunal suffers from a number of fallacies namely firstly the Tribunal has failed to realise that the appellant was re cruited as a regular employee on selection by the State Public Service Commission pursuant to an advertisement issued in this behalf and therefore the appellant s em ployment was regular in nature and not that of a mere local candidate secondly the post to which he was appointed was a regularly created post and was a higher than that of respondents Nos 3 to 7 even during the period there existed no recruitment rules and in any case after his confirmation wef
29th September 1972 it was not open to the Tribunal to hold that his appointment was irregular and thirdly the Tribunal had erred in overlooking the guideline issued by the state Government on 5th July 1976 which specifically provided that all appointments made by the Government or under specific authority of Government either by direct recruitment or by promotion or on or after 1st November 1956 but prior to the commencement of the Rules regarding recruitment to such cadres may be treated as regular 
The appellant contends that in pursuance of this guideline issued by the State Government even if it is assumed that his initial appointment was irregular it had to be treated as regular throughout
The appellant therefore contends that the Tribunal s order suffers from certain patent in firmities and deserves to be set aside
It appears that before the Tribunal respondents Nos1 2 4 6 and 7 did not file any counter challenging the appellant s claim to sen iority but respondents Nos 3 and 5 contested the appel lant s claim while the State Government avoided entering into the arena by filing a counter but instead presented the relevant files to the Tribunal
So far as respondents Nos 3 and 5 are concerned they supported the action taken by the state Government in preparing both the impugued provisional as well as the final seniority lists
They contended that since they were regular employees and had entered service before the appellant and were promoted to the post of As sistant Drilling Engineers along with the appellant they were clearly senior to the appellant and the State Govern ment was therefore justified in showing them at Serial Nos1 to 5 and the appellant at Serial No 6 in the seniori ty list
They therefore contend that this 604 appeal is without substance and needs to be dismissed
We have heard counsel for the rival contestants
Counsel of the State Government submitted that they had prepared the seniority list for reasons already stated but they would not like to take sides and would abide by the decision of this court
In order to appreciate the controversy it is necessary to refer to the Karnataka Civil Services Classification Control and Appeal Rules 1957
According to Rule 5 the Civil Services of the State of Karnataka are classified into Class I Class II Class II and Class IV posts
Class I and Class II are gazetted Posts whereas Class III and Class IV consist of non gazetted Posts
So far as Class III posts are concerned the initial appointments have to be made by the authorities mentioned in Column 2 of Schedule II appended to the Rules
In regard to the posts of Junior Engineers the lind Schedule makes the Director the Appointing Authority
There can therefore be no doubt that the initial appoint ment of the appellant was by an authority competent to appoint
It is indeed true that at the time when the appel lant was selected by the State Public Service Commission and appointed as Junior Engineer wef
4th May 1970 there were no specific Recruitment Rules in existence for the post in question
As stated earlier the posts were created for the first time in 1966 and since then the Director had been in correspondence with the State Government for framing of the Recruitment Rules for the said posts
Since the Recruitment rules were not framed for one reason or the other in 1969 the Director wrote a letter to the State Public Service Commission to advertise the vacancies and select candidates for appointment
Simultaneously he wrote a letter informing the State Government of the action taken by him in request ing the State Public Service Commission to advertise the posts and select candidates for appointment
Pursuant to the requisition sent by him the Commission selected candidates and forwarded the list to the Director who was the Appoint ing Authority under the Karnataka Civil Service Classifica tion Control and Appeal Rules 1957
The Director who was competent to make the appointment by virtue of Rule 7 issued a letter of appointment dated 24th April 1970 whereapon the appellant took charge wef 4th May 1970
It therefore becomes apparent that the posts were regularly created sometime in 1966 and the appellant was duly selected by the State Public Service Commission and appointed to the post in question in 1970
The appellant being an engineering gradu ate was qualified for appointment to post in question
The state Government s approach while sliding down the appellant in seniority vis a vis the respondents Nos
3 to 7 may be briefly noticed
605 After the recruitment rules for Junior Engineers Mechani cal were framed and brought into effect wef
23rd August 1973 it was felt that the two posts of Junior Engineers were filled by direct recruitment contrary to the said rules which provided a ratio of 50 by promotion from the cadre of Drillers and 50 by direct recruitment
Since both the posts were filled by direct recruitment it was felt that this ratio was violated
The date of the appellant s seniority was therefore reckoned from 23rd August 1973 and since the appellant had not acquired experience of three years he was held ineligible for promotion to the next higher post of Assistant Drilling Engineer
His entry into the promo tional post was therefore pushed down to 23rd August 1976 and accordingly respondents Nos 3 to 7 were placed above him in the seniority list
The Tribunal concurred with this approach
The Tribunal held that the initial appointment of the appellant as Junior Engineer Mechanical by the Direc tor was not supported by any rules and the Director not being the appointing authority for the said posts in 1970 the appellant s appointment was not regular
Secondly the Tribunal concurred with the Government that the appellant s entry into the cadre of Assistant Drilling Engineer must be assumed to be wef
23rd August 1976 and hence respondents nos
3 to 7 were clearly senior to him
In short the Tribu nal approved of the Government s approach in With respect we find it difficult to approve of the said approach
As pointed out earlier the posts were sanc tioned in 1966
Initially the appellant was appointed as a local candidate but later the Director requested the State Public Service Commission to advertise the said two posts and select candidates for appointment to the said posts
Pursuant to the advertisement so issued the appellant ap plied was found qualified and was selected for appointment
The Director therefore made the appointment as he was the appointing authority for Class III posts under the Karnataka Civil Services Classification Control  Appeal Rules 1957 vide Rule 72 read with Column 2 of Schedule II thereto
That rule clearly shows that the Director is the appointing authority for Junior Engineers a Class III post
The Tribunal was therefore not right in holding that the appointment made was irregular as it was not by the appoint ing authority
The Tribunal was wrong in holding that the Director was not the appointing authority for Junior Engi neers
Strictly speaking that was not the approach of the Government
The Government held the appointment irregular as in its opinion it had exceeded the quota of 50 for direct recruits
This view is based on the premise that the serv ices must be regularised applying the 1973 Rules retrospec tively
Here there are two fallacies firstly the appellant being senior of the two direct recruits appointed as Junior Engineers he would fill the slot for the one post which 606 went to direct recruits on the 50 quota and secondly it was not permissible to question the appointment made in 1970 in 1987 when in the intervening period none had challenged the appellant s appointment
The objection which the Government had raised on his promotion to the next higher post was that he was a local candidate and not a regular appointee an objection which was not pursued presumably on realising that he was selected by the State Public Service Commission before appointment
Not only that the Government acquiesced in his appointment by promoting him to the next higher posts in 1980 and 1984
Since the posts existed on the establish ment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment it cannot be said that the absence of recruitment rules makes the appointment illegal or irregular when it is found that the appellant a degree holder was eligible for appointment to the post
This is so also be cause irregular appointments were regularised by the Govern ment Memorandum dated 5th July 1976 the relevant part whereof reads as under 3a
All appointments made by Government or under specific authority of Government either by direct recruitment or by promotion on or after 1st November 1956 but prior to the commencement of rules regulating recruitment to such cadres may be treated as regular
This was clarified by the subsequent letter dated 17th September 1977 as under Para 3a states that all the appointments made by Govern ment or under specific authority of Government either by direct recruitment or by promotion on or after 1111956 and prior to the commencement of the Cadre and Recruitment Rules of the concerned cadre may be treated as regular that is to say the action taken by Government on other Appointing authorities in resorting either of the modes of recruitment is regular
This para does not say that the appointment of local candidates as a stop gap arrangement is regular
The Tribunal refused to place reliance on the above on the erroneous ground that the Director was not the appoint ing authority and the appellant was a local candidate
Once both these are found to be erroneous there is no reason to brush aside the said guidelines
It may also be appreciated that the services of local candidates in Class III cadre were regularised by Office Order No17771 72 dated 31s1 August 1971 and had the 607 appellant not have been appointed as a regular candidate wef 4th May 1970 his service would also have been regu larised as a local candidate
From what we have discussed above it is obvious that the entire approach of the State Government and the Tribunal was erroneous
Besides the appellant was shown senior to re spondents Nos
3 to 7 right from 1970 to 1987 when his seniority came to be disturbed
During the said period of 17 years all attempts to disturb his seniority had failed
No one successfully challenged it in Court
The appellant s seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Govern ment could not be disturbed by doubting the
regularity of the initial appointment after so many years
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experience as a Junior Engi neer could be overlooked
We are therefore of the opinion that his seniority in the promotion post could not be upset on the ground that he did not possess the requisite experi ence till 23rd August 1976
In Direct Recruit Class H Engineering Officer s Associa tion vs State of Maharashtra  Ors   this Court held in paragraph 13 as under The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16
If an appointment is made by way of stop gap arrangement without considering the claims of all the eligible available persons and without following the rules of appointment the experience on such appointment cannot be equated with the experience of a regular appointee because of the qualitative difference in the appointment
To equate the two would be to treat two unequals as equal which would violate the equality clause
But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments there is no reason to exclude the officiating service for purpose of seniority
Same will be the position if the initial appoint ment itself is made in accordance with the rules applicable to substantive appointments as in the present case
To hold otherwise will be discriminatory and arbitrary
In the present case also the appellant s appointment was made in 1970 after all eligible candidates were interviewed by the State Public Service Commission
As pointed out earlier the posts were borne on the establishment and the Director was the appointing authority who made the appoint ment pursuant to the selection made by the State Public Service Commission
The appellant worked on that post unit erruptedly till he was 608 promoted to the next higher post along with respondents Nos 3 to 7
In these circumstances his experience in the post of Junior Engineer Mechanical from 1970 till his promotion to the next higher post could not be ignored
We are there fore of the opinion that the ratio laid down by the Consti tution Bench in the aforequoted paragraph applies with all force in the present case also
In the result we allow this appeal and set aside the order of the Tribunal
We hold that the appellant s seniori ty over respondents Nos
3 to 7 as was obtaining before 31st December 1987 when the provisional seniority list was published shall be restored and he shall be shown to be senior to respondents Nos
3 to 7 by correcting the impugned final seniority list
The appeal is allowed accordingly with no order as to costs
TNA Appeal allowed


Summary:
In Civil Appeal No3519 of 1984 filed by the appel lants who were appointed as doctors on adhoc basis in the Central Health Service on various dates between 1968 and 1977 praying for regularisation of their services with reference to their original dates of appointments this Court by its judgment dated 941987 and subsequent orders gave certain directions
Since the Union of India could not implement the directions the appellants filed the civil miscellaneous petition for clarification of the earlier orders passed by this Court in the Civil Appeal
Certain other doctors who fall in the category of the appellants adhoc appointees and who had not earlier filed writ peti tion before the High Court filed writ petitions and inter vention applications before this Court praying for the benefits as granted to the appellants
It was contended by the Union of India that if regulari sation was granted to all the appellants and the like cate gories of doctors the doctors regularly appointed in Group A may get relegated to secondary position in view of the fact that the appellants were appointed much earlier on adhoc basis
The regularly recruited doctors not heard earlier also filed intervention applications praying that any order of regularisation of the appellants and the similarly situated doctors should ensure that their interests were not preju diced
The appellants and the other similarly situated doctors expressed their willingness to be considered for regular appointments 110 only from 111973 this being the date on which the Group B and Group A services were merged together by the Government of India
They also agreed to give up monetary claims on account of revision of scales regularisation or promotion to which they would be entitled till 31101991
Disposing of the matters this court HELD 1
Each of the appellants will be treated as regularised in Group A of the Central Health Service from 111973 or the date of his first initial appointment in the service though as an adhoc Group B doctor whichever is later
p 113 B 2
In order to ensure that there is no disturbance in the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions shall be regulated by such separate seniority list and such promo tions will only be in supernumerary posts to be created by the Government
p 113 B C 3a
Each of the appellants will be eligible for promo tion to the post of Senior Medical Officer or Chief Medical Officer or further promotional posts therefrom taking into account his seniority in the separate seniority list
p 113 D bThe promotion of any of the appellants to the post of Senior Medical officer Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned appellant on the basis of their respective dates of appointment eg if a regularly recruited doctor on the basis of the seniority list maintained by the Depart ment gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical officer or Chief Medi cal Officer or further promotion therefrom as the case may be with effect from the same date
p 113 D F 4
In order to avoid any conflict or any possibilities of reversion the post to which an appellant will be promot ed whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom should only be to a supernumerary post
Such number of supernumerary posts should be created by the Govern 111 ment as may be necessary to give effect to the above direc tions
No promotion will be given to any of the appellants in the existing vacancies which will go only to the regular ly appointed doctors
pp 113 F H 114 A All the writ petitioners and interveners falling in the category of the appellants would also be entitled to the same reliefs as the appellants for all purposes of seniority and promotion
p 114 A C