IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 163 of 2010 Reserved on May 17, 2011. Decided on: May 27, 2011. Rajesh Kumar Dharmani & others Vrs. Ramesh Chandera Chajta & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes. For the petitioners: M/S Dilip Sharma and Shrawan Dogra, Advocates. For the Respondents: Mr. P.S.Patwalia, Sr. Advocate with Mr. Ajay Mohan Goel and Mr. Vivek Sharma, Advocates for respondents No. 1 to 5. Mr. R.K. Bawa, AG with Mr. J.K. Verma, Dy. AG for respondent No.6. Justice Kurian Joseph, C.J. Whether adhoc service followed by regular appointment will count for seniority is the short question arising for consideration in this appeal. The appellants are the respondents in the Writ Petition. The Writ Petition was filed challenging Annexure P-18, seniority list dated 22nd February, 2007, wherein the government had taken a stand that the adhoc/officiating service should count for seniority. The writ petitioners are the directly recruited Deputy Superintendents of Police, under the Himachal Pradesh Police Service Rules, 1973 and the respondents (appellants herein) are the promotee Deputy Superintendents of Police. Learned Single Judge allowed the writ petition holding that the adhoc/temporary/officiating service as Deputy Superintendent Police shall not count for the purpose of seniority and hence the appeal. 2 2. Though the learned counsel on both the sides have extensively taken us through the factual position and legal proposition, in the nature of the view we propose to take in this judgment, it is not necessary to refer to all those contentions since on the un-disputed factual position we do not find any scope for interference, though for different reasons. In that view of the matter, we may refer to short facts. 3. All the appellants were appointed during the period 1994 to 1999, purely on temporary basis. Annexure P-22 A series are the orders of appointment. Since the conditions of appointment are the same, we may extract the relevant part of first of such orders: “ The Governor, Himachal Pradesh is pleased to order the promotions of the following permanent Inspectors of Police in the pay scale of Rs. 2200-4000 purely on temporary basis, against short terms/ex-cadre posts as Dy. Supdts. of Police/SDPOs, till further orders, with immediate effect:- Sr. No. Name of Inspectors (permanent) x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x The above orders will not confer any right on them to claim seniority/inter-seniority or regular promotions in Himachal Pradesh Police Service.” The adhoc appointees were given regular appointment to the Himachal Pradesh Police Service as per Annexure P-21, dated 26.7.2000. The order reads as follows: “Under Rule-14 of the Himachal Pradesh Police Services Rules, 1973 and in consultation with the Himachal Pradesh Public Service Commission, the Governor, Himachal Pradesh, is pleased to appoint on probation, the following permanent Inspectors of Police 3 against regular posts of Dy.S.P.’s/S.D.P.O.’s in HPPS Cadre, with immediate effect:- Sr. No. Name of Officer. x x x x x x x x x x x x x x x x x x x x x x” 4. Thus, it is not in dispute that the appellants were appointed in the HPPS, as per rules only on 26.7.2000 and they started their probation also only on that date. The writ petitioners (direct recruits) on the other hand were appointed as per Annexure P-20, order dated 16.4.1999 and other orders, all prior to Annexure P-21, dated 26.7.2000. Thus, it is not in dispute that the directly recruited HPPS Deputy Superintendents of Police started their probation prior to the promotees, though they had officiating service prior to that. 5. Rule 18 of the Himachal Pradesh Police Service Rules, 1973, deals with the seniority of the members in service, which reads as follows: “18. Seniority of members of the service:- The seniority of officers appointed to the service shall be determined in accordance with the order of their appointment to the service; provided that- (a) if the order of appointment of any candidate is cancelled under the provisions of rule 17, and such candidate is subsequently appointed to the service the date of his appointment to the service for the purpose of this rule shall be the date of such subsequent appointment; (b) if any officer appointed to the service fails to qualify himself for substantive permanent appointment within the prescribed period of probation the Government may determine whether the date of his appointment for the purpose of this rule shall be 4 postponed by a period not exceeding the period by which such officers substantive permanent appointment is delayed beyond the prescribed period of probation; (c) The seniority of those Himachal Pradesh Police Service Officers allocated to Himachal Pradesh under section 4 of section 40 of the State of Himachal Pradesh Act, 1970, whose seniority has been finalized and circulated under various letters issued by the Government of India shall remain unchanged.” ‘Member of Service’ is defined at Rule 2(g), to the extent relevant, it reads as follows: “ ‘Member of Service’ means a member who is appointed to the service in accordance with the provisions of these rules.” ‘Appointment of Service’ is defined at Rule 2(e) and ‘Duty post’ is defined at Rule 2(f), which reads as follows: “2(e). “Appointment to the Service” means an appointment to a Duty post, whether on permanent, temporary or officiating basis, or on probation; 2 (f). “Duty post” means any post specified in appendix ‘A’ or any other post declared as such by Government and includes a temporary post carrying the same designation as any of the posts specified in that appendix with an identical scale of pay;”. Rule 7 of Himachal Pradesh Police Service Rules, 1973, provides for the selection procedure, which reads as follows: “7. Selection of candidates from Inspectors and Prosecuting Inspectors.-(1) Recruitment under clause (b) or sub-rule (1) of rule 6, shall be made on the recommendation of a Selection Committee (hereinafter referred to as the Committee) consisting of- 5 (i) The Chairman or a member of the Commission .. Chairman (ii) The Chief Secretary or the Secretary to the Government in the Chief Secretary’s Branch .. Member (iii) The Inspector General of Police, Himachal Pradesh ..Member (2) The Committee shall consider from time to time the cases of Inspectors eligible for appointment to the service and prepare a list of officers according to the percentage fixed under clause (b) of sub-rule (1) of rule 6. The list shall contain the names of the selected candidates twice the number of the vacancies at the time of selection or likely to occur during the next one year. The selection for inclusion in the list shall be based on merit and suitability in all respects for appointment to the service with due regard to seniority. (3) The names of persons included in the list shall be arranged in the order of merit. (4) The list so prepared along with relevant record shall be forwarded by the Committee to the Government. The Government shall send the list along with the record to the Commission and obtain its concurrence whereafter the list shall be considered final. (5) The list shall remain operative for one year from the date of its approval by the Commission.” 6. There is no dispute that the promotee Deputy Superintendents of Police (appellants) were appointed as per Rules, after undergoing the process of selection under Rule 7 only w.e.f. 26.7.2000 (Annexure P-21). They started their probation only on that date. Only on satisfactory completion of probation, one becomes a member of service. The seniority of the members of 6 service is fixed based on the date of commencement of service and on the date of commencement of service, he is put on probation, unless otherwise specified. Admittedly, all the directly recruited Deputy Superintendents of Police have commenced probation prior to the promotees. On that short ground itself, it has to be held that the promotees in this case are not entitled to any relief and their appeal is liable to be dismissed. 7. However, we may refer to few persuasive submissions made by learned counsel for the appellants. It is the case of the appellants that the Departmental Promotion Committee has met on 15.5.2000 (Annexure A-2 in the appeal) and the DPC has found them fit to be appointed as ‘Members of Service’ prior to the direct recruits during the years 1995, 1996, 1997 and 1998. But, it has to be noted that no consequential orders of appointment have been issued in favour of the promotees pursuant to the minutes of the meeting. The DPC only assesses the merit of the candidates and prepares a list of such candidates who are found fit and suitable for appointment/promotion. That list is only a recommendation for appointment. Unless and until, the appointing authority accepts the recommendation and issues the consequential orders of appointment, the persons who have been assessed to be fit and suitable for appointment/promotion do not get any right based on the recommendation of the DPC. It is the contention of the appellants that in view of the recommendation of the DPC, they shall be granted seniority. That contention cannot be appreciated. The DPC recommendation has nothing to do with the seniority. Seniority has to be counted based on the date of appointment to service. Therefore, unless and until they are appointed to service 7 as per the recommendation of the DPC, they cannot have any claim for seniority based on the recommendation of the DPC. 8. Yet another contention is based on the Constitution Bench decision in The Direct Recruit Class-II Engineering Officers’ Association and others vrs. State of Maharashtra and others, reported in AIR 1990 Supreme Court 1607, with particular reference to the dictum at paragraph 44(B), it has been held as follows: “44 (B). If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” 9. The appellants have also sought to place reliance on the decision of the Supreme Court in S. L. Chandrakishore Singh, vrs. State of Manipur and others., reported in AIR 1999 Supreme Court 3616, wherein in has been held as follows: “Seniority itself based upon length of service is an acquired right of an employee which entitled him to be considered for further promotion. It is generally regulated by Service Rules. Such rules normally provide for determined seniority with reference to the date of appointment to the class, category and grade to which the appointment is made. It is determined only on the basis of the length of service. Such length of service may be on the basis of the difference of continuous officiation or on the basis of the difference of substantive appointment in the cadre or grade or service which may be reckoned from the date of confirmation on the basis of regularization. It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the 8 service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation.” 10. On facts, it has to be specifically noticed that it is not the regularization/approval of the adhoc service rendered by the promotees, that has been done as per Annexure P-21, dated 26.7.2000. It is an appointment w.e.f. that date, placing them on probation w.e.f. that date. There is not even a reference to their prior adhoc service. Regularization of service and regular appointment in service are two different and distinct concepts altogether. The adhoc appointments have not been regularized so far. Thus, the promotees cannot have any assistance from the decisions of the apex Court since they have not been regularized pursuant to their long or uninterrupted adhoc/officiating service. To put it differently also, the promotees have not been appointed under the Rules w.e.f. the date of their officiating/adhoc service. Seniority can be given only when one is appointed under the Rules and as per the rules unless otherwise specified in the order of appointment. 11. Adhoc service followed by regular appointment can be counted for seniority only when the same is regularized. Merely because an adhoc service is followed by regular appointment, an 9 adhoc appointee is not entitled to claim the benefit of such adhoc service for the purpose of seniority. As held by the Supreme Court in K. Madalaimutuh and another vrs. State of T.N. and others, reported in (2006) 6 Supreme Court Cases 558, “A person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularized. It, therefore, follows that it is only from the date on which his services are regularized that such appointee can count his seniority in the cadre.” 12. Yet another contention advanced is based on Annexure A-3 (produced alongwith the appeal), instruction of the government regarding counting of temporary/adhoc service towards seniority. The relevant instruction reads as follows: ……“(i) Where an incumbent is eligible to be promoted in accordance with relevant Recruitment and Promotion Rules but initial promotion on adhoc/temporary basis is made against existing vacancy by not following the procedure laid down in relevant rules for adjudging suitability of promotee for the post and the promotee continued in the post uninterruptedly till regularization of his promotion in accordance with the rules, in that event his subsequent regularization after adjudging suitability shall relate back to the date of his initial promotion and entire adhoc/temporary service shall be counted towards seniority.”…….. 13. Assuming that the instruction applies in the case of the appellants (there is a strong contention that being an instruction issued after the appointment of the promotees the same shall not apply to them), it has to be noted that the 10 instruction applies only in the case of promotees, continuing in a post uninterruptedly and getting regularized. As observed by us above, there is no regularization in the case of the promotees (the appellants) of their officiating service. They have only been appointed w.e.f. 26.7.2000. Therefore, that instruction also is of no assistance or application to the appellants. 14. Thus, the appellants/promotee Deputy Superintendents of Police under the Himachal Pradesh Police Service Rules, 1973, are entitled to count the seniority only w.e.f. their date of appointment in service namely 26.7.2000. That alone has been held by the learned Single Judge. Thus, though also for different reasons, we do not find any merit in the appeal, which is accordingly dismissed. (Justice Kurian Joseph), Chief Justice. May 27, 2011. ( Justice Kuldip Singh ), (karan) Judge.