1 I N THE HI GH COURT OF JUDI CATURE FOR RAJASTHAN AT JAI PUR BENCH, JAI PUR I nder j eet Singh vs. Th e St at e of Raj ast h an & An r . ( S.B. CI VI L W RI T PETI TI ON NO. 1 8 7 5 / 1 9 9 5) Dat e of Or der : 2 3 / 1 0 / 2 0 0 8 PRESENTS HON'BLE MR. JUSTI CE RAGHUVENDRA S. RATHORE Mr. R. D. Rastogi, for the petitioner(s). Mr. M. A. Khan, Government Counsel for the State. Repor t able By t h e Cou r t : ( Or al) . This writ petition has been filed by the petitioner with the prayer that the respondents be directed to count his services from the date of joining as Inspector Grad-II in Command Area Development, Chambal, Kota, i.e. from 17.12.1977. Further it is prayed that the orders dated 08.01.1992 and 15.12.1993 be modified to that extent and all consequential benefits be given to the petitioner. 2. Broadly stated, the facts of the case are that the petitioner was initially appointed as Inspector Grade-II in the Command Area Development Office, Kota on 30.11.1977 in the pay scale of 440-770. The petitioner had faced an interview and he was appointed against a permanent post. The petitioner joined his services on 30.11.1977. 3. Thereafter, the work of the petitioner having been 2 found to be satisfactory, his services were extended by order dated 20.06.1978 till further orders (Annexure-2). The petitioner then continued to work in C.A.D. Office, Kota upto the year 1983. Thereafter, he was declared surplus in that Department as a result of abolition of posts. Consequently, the petitioner was at the disposal of the General Administration Department, Government of Rajasthan and his headquarter was in the office of Collector, Kota. Subsequently, the G.A.D. Department, by its order dated 06.09.1983, absorbed the petitioner on the post of Enforcement Inspector in the Food & Civil Supplies Department, State of Rajasthan. The said absorption was in the same grade which the petitioner was drawing as Inspector Grade-II in C.A.D. Department. Accordingly, an order of appointment was issued on 03.12.1983 whereby the petitioner was appointed against a vacant post of Enforcement Inspector, on urgent temporary basis, w.e.f. 12.09.1983 (Annexure-3). The petitioner was then posted in the office of District Supply Officer, Kota, where he joined on 21.12.1983. 4. Later on, a seniority list,, under the provisions of Rule 31 of the Rajasthan Food & Civil Supplies Subordinate Service Rules, 1974, was published on 14.12.1981. But, as the petitioner had joined in the Department of Food and Civil Supplies after the abolition of the post in C.A.D., Kota, in the year 1983, his name was not shown in the said seniority list. However, after absorption of the petitioner, neither his name was included in the seniority list nor he was confirmed and as 3 such the petitioner made representation on 03.06.1985 (Annexure-5), with a request to include his name in the seniority list of the Department from the date of his initial appointment. Again, a representation was made which duly forwarded by the District Supply Officer, Kota on 05.09.1991. The District Supply Officer had sent a letter on 02.12.1991 to the Secretary to Government, Food & Civil Supplies Department, Rajasthan, Jaipur referring the earlier representation made by the petitioner and also mentioned that the petitioner had been absorbed on the post of Enforcement Inspector but his name had not yet been included in the seniority list. While making the said representation, the petitioner had also placed a copy of the judgment of the High Court dated 24.11.1990, upon which he placed reliance in support of his representation. 5. Subsequently, the Additional Food Commissioner- cum Dy. Secretary, Food & Civil Supplies Department, Government of Rajasthan, Jaipur issued an order on 08.01.1992 whereby he regularised the appointment of the petitioner on the post of Enforcement Inspector w.e.f. 12.09.1983. The petitioner submitted a representation on 23.01.1992 with a request to regularise his services from the date of joining as Inspector Grade-II in the Command Area Development since he was declared surplus from the Department and as a result of which he was absorbed in the Food & Civil Supplies Department. As the earlier representation was not responded, the petitioner again submitted a representation, through D.S.O., Kota on 4 25.05.1992, who made his endorsement on 12.08.1992. Thereafter, the petitioner again submitted a representation on 20.12.1993 to the Additional Food Commissioner, Government of Rajasthan, Jaipur reiterating his request that he be assigned seniority from the date of his joining on the post of Enforcement Inspector, Grade-II in C.A.D. Department on 17.12.1977. 6. A tentative seniority list was then published on 17.09.1994 for the post of Enforcement Inspector, Food and Civil Supplies Department and the name of the petitioner appeared at serial No. 309 in the said seniority list. The petitioner again submitted a representation which was duly endorsed by the District Supply Office, Kota on 10.10.1994. The petitioner had represented that he has been working on the post of Inspector Grade-II after proper selection since 17.12.1977 and therefore, his seniority be assigned from the date of initial appointment/ joining. In the said representation, the petitioner referred to certain employees who were also working in the Food and Civil Supplies Department and they had been so absorbed after being declared surplus from the Sheep & Wool Department. According to the petitioner, the said persons had not been assigned seniority after taking into account their past services and as such they had approached the High Court by filing writ petitions No. (5110/ 93 'Ghan Shyam Singh Rajoria vs. State of Rajasthan') and (5111/ 93 'Krishan Singh Rathore'). Both the writ petitions were decided on 06.01.1994 and it was ordered that the seniority be assigned to petitioner from the date of his initial 5 appointment that is their joining in the Department of Sheep and Wool. Therefore, the petitioner had requested that the same treatment be also given to him as done in the case of other employees, who have been absorbed from Sheep and Wool Department. The respondents had, vide order dated 23.06.1994, made compliance of the order of the High Court by assigning seniority to Ghan Shyam Singh Rajoria and Krishan Singh and other similarly situated persons after counting their past services in the Department of Sheep and Wool (Annexure-14). Therefore, the grievance of the petitioner is that he should have been given seniority after counting his past services which were rendered in the C.A.D. Department. Hence, this present writ petition had been filed by the petitioner seeking the aforementioned reliefs. 7. The respondents contested the writ petition by way of filing their reply. They had also raised objection with regard to the alternative remedy which, according to them, the petitioner should have availed by filing an appeal before the Civil Services Appellate Tribunal. Further, it is stated in the reply that the petitioner was appointed in the Command Area Development, Kota on the post of Inspector Grade-II on adhoc basis and after being declared surplus, he was appointed on the post of Enforcement Inspector under the provisions of Surplus Rules on adhoc basis. Further, it is stated that the petitioner was absorbed w.e.f. 12.09.1983 on urgent temporary basis because at the time of being declared surplus, the petitioner was temporary and not substantively appointed on the post of Inspector Grade-II. 6 Accordingly, the respondents have stated in the reply that the petitioner cannot claim seniority from the date of initial appointment. The seniority can be given to the petitioner only from the date of regularisation i.e. 15.12.1993 and the same has been so done. The respondents have also stated that the seniority accorded to the petitioner is in accordance to the provisions of the Rules of 1969 and he was given seniority after regularisation of service w.e.f. 15.12.1993. The respondents have further stated that the petitioner was working on adhoc basis at the time of declaring surplus and therefore, he has been rightly given seniority from the date of regularisation and not from the date of initial appointment in view of the guidelines laid down by the Apex Court in the case of Mahar ash t r a Dir ect En gin eer Associat ion Vs. St at e of Mah ar asht r a & Or s, AI R 1 9 9 0 SC 1 6 0 7 . 8. The case of the petitioner is that though the petitioner was appointed on adhoc basis, as given in the order dated 30.11.1977 but for all practical purposes his appointment had been made in accordance to the rules as the said appointment was on regular basis, against permanent post and after following the due procedure. He has further submitted that the respondent-Department had given the benefit of seniority to other similarly situated persons, who had been declared surplus from Sheep and Wool Department and were given seniority from the date of their initial appointment. Therefore, the counsel for the petitioner has submitted that the respondent-Department cannot adopt different yardsticks for the purposes of assigning 7 seniority. In doing so, it has been submitted by the counsel for the petitioner that the respondents have certainly adopted a discriminatory method as a result of which the rights of the petitioner under Article 14 of the Constitution of India has been infringed. The learned counsel for the petitioner has also submitted that it is a settled principal of law, as to what constitutes a substantive appointment. In this case, he has submitted that the nomen-culture as given in th appointment letter is not the only test with regard to the nature of appointment given to an employee. The circumstances as a whole should be taken so as to assess the appointment so given. On that premise, he has submitted that the appointment of the petitioner cannot be said to be an adhoc appointment in the strict sense of the term. He has further submitted that even otherwise the petitioner is entitled to be assigned seniority from the date of his initial appointment because it is also a settled principle of law, as given out by the Apex Court in number of cases, that it is the method of appointment which is the basis so as to see that the an employee is entitled for all service benefit irrespective of the fact whether the appointment was initially temporary, etc. 9. In reply to the objection raised by the respondents with regard to the alternative remedy, the learned counsel for the petitioner has submitted that this writ petition is pending since the year 1995 and having been admitted, it will be just and proper to now decide the matter on merits. In support of the 8 said submission, he has placed reliance upon the case of A.V.G.P. Chet t iar & Son s & Or s. vs. T. Palanisam y Gou n der , r epor t ed in ( 2 0 0 2 ) 5 SCC 3 3 7. 10. On the other hand, the learned counsel for the respondents have submitted and reiterated their stand taken in the reply that there cannot be any dispute with regard to the fact that the appointment of the petitioner was purely on adhoc basis. He has also submitted that the analogy in respect of those absorbed in the Food and Supplies Department cannot be adopted unless it is shown that the nature of appointment of the said employees were also on adhoc basis in their department, as that of the present petitioner. He has led emphasis on the orders of the appointment of the petitioner (Annexure-1 & 2), in support of his submissions, that the orders are very clear and specific that the appointment given to the petitioner was on adhoc basis. 11. The petitioner was appointed in service, vide order dated 30.11.1977. The said appointment was made when the petitioner was declared successful in the interview which he had faced. The interview for the post of Inspector Grade-II was held on 16.11.1977. The petitioner was accordingly selected and was posted on the post of Inspector Grade-II against the vacant posts in the office of Regional Development Commissioner, Kota. His appointment was in the scale of 440-10-490-20-770, alongwith other allowances payable by the state Government. 9 The appointment was made upto 20.02.1979 or on availability of person in the post of Inspector Grade-II from the General Administration Department. The said appointment mentions that the appointment was adhoc. Thereafter, the Command Area Development, Chambal, Kota had issued an order on 20.06.1978, in continuation of earlier order dated 30.11.1977, the temporary appointment of the petitioner on the post of Inspector Grade-II of the O.S.D. Unit of that office and whose working performance had been reported satisfactory by his immediate controlling officer, was extended for the period till further order. The said order (Annexure-2) was passed on the approval of the Area Development Commissioner, Kota. While the petitioner was continuing in service in C.A.D. Department, Kota, an order came to be passed by the Additional Commissioner-cum-Secretary, Department of Food and Civil Supplies, Jaipur, Rajasthan, on 03.12.1983 whereby the petitioner was appointed on the post of Enforcement Inspector against a vacant post from 12.09.1983 till selected candidate was made available by the Rajasthan Public Service Commission. Therefore, the petitioner having been appointed in the year 1977 and continuing thereafter, was posted in another department on the post of same pay scale but he was not included in the seniority list of that Department i.e. Food and Civil Supplies Department. Later on, the petitioner was confirmed on the subsequent post, vide order dated 08.01.1992 w.e.f. 12.09.1983 in accordance to Rajasthan Civil Supplies (Absorption of Surplus Transfer), Rules, 1969 (Annexure-7). 10 Again on 15.12.1993, in furtherance of the order of the Government dated 13.08.1981, the services of the petitioner were regularised with immediate effect under the Rajasthan Food and Civil Supplies Subordinate Service Rules, 1974 (Annexure-10). Thereafter, the petitioner was included in the seniority list of the Food and Civil Supplies Department, vide order dated 17.09.1994 at serial No. 309 on the ground that his regularisation on the post was made on 15.12.1993. The case of the respondents is that so far as the services of the petitioner in his earlier Department i.e. C.A.D., Kota is concerned, the same was on adhoc basis and as the services of the petitioner were regularised only in December, 1993 that his name had been incorporated in the seniority list by order dated 17.09.1994. The case of the petitioner is that the inclusion of the petitioner's name in the seniority list w.e.f. 15.12.1993 is wholly incorrect because the services of the petitioner, since the year 1977, were on substantive basis though in the order of appointment the nomen-culture may have been used as adhoc. Further he has submitted that for the purpose of seniority list in the Food and Civil Supplies Department the services of the petitioner, since his initial appointment in the year 1977, should have been considered. His submission is that the complete length of services of the petitioner should be counted for the purpose of seniority. 12. A question which arises for consideration in this case is as to whether the appointment of the petitioner in the year 1977 was an adhoc appointment or a substantive appointment. 11 For considering this question, the circumstances relating to the appointment, the post on which the petitioner was appointed and method adopted for giving the appointment to the petitioner are to be considered. In other words, while considering the nature of appointment of the petitioner the substance has to be seen and not only the nomen culture used in the order of appointment. Mere mentioning of adhoc, temporary, etc. in the order of appointment would not change the real nature of appointment. In the instant case, the petitioner was given appointment in the year 1977 with due selection, after having been successful in the interview held on 16.11.1977. The said appointment was against a vacant post and on a regular pay scale. The said appointment was thereafter continued till further orders, vide order dated 20.06.1978. It is also to be noted that in the subsequent order, it had been mentioned that it was on account of the working performance having been reported to be satisfactory by the immediate controlling officer of the petitioner that his services were extended till further orders. The said order was passed in continuation of the order dated 30.11.1977 and it was mentioned that the period is being extended in terms of the temporary appointment given to him. Therefore, the said adhoc appointment given to the petitioner in the year 1977 was continued till further orders by the order dated 20.06.1978. Besides, when the petitioner was so continued in service, he was absorbed in another Department i.e. The Food and Civil Supplies Department on the same pay scale and against a vacant post. 12 13. Taking into consideration the overall facts and circumstances, particularly the fact that the appointment given to the petitioner after a selection process, merely mentioning in the order of appointment in the year 1977 that the appointment was adhoc, is not the correct indication about nature of appointment. In fact, the appointment given to the petitioner was substantive in nature. This view of the Court finds support in the case of R.S. Raw at vs. St at e of Raj ast h an & Or s., 1 99 3 ( 1) W LC ( Raj .) 79, wherein it was held as under: - “The aforesaid decisions show that for the purpose of determining whether a particular appointment was in a substantive capacity, the court has to look into the substance of the matter, i.e., the mode of selection, the manner of selection and the nature of vacancy. The fact that the appointment was made after issuing an advertisement calling for applications from eligible candidates and the fact that a select list/ merit list was prepared on the recommendations of a duly constituted Selection Committee are indicative of the appointment being a regular and substantive appointment and not merely 'adhoc'.” Further the Court has held that- “In view of this pronouncement of Supreme Court, there can be no doubt that if the court finds that the terms and conditions contained in the letter of appointment or the offer of appointment, are wholly arbitrary and unreasonable, the same can be declared as invalid. In the present case I have already held that the nature of appointment of the petitioner has to be treated regular and substantive. Therefore the use of the word 'adhoc' and fixing of a term of employment upto 30.4.1 are inconsequential. Logically it must be held that these conditions are invalid and are not binding on the petitioner.” 13 The said view had taken note of and is based on the judgments passed by the Hon'ble Supreme Court in the case of Balesh w ar Dass vs. St at e of U.P., AI R 1 9 8 1 SC 4 1 ; St at e of U.P. Vs. M.J. Siddiqu i an d ot her , AI R 1 9 8 0 SC 1 0 9 8 . Beside the view expressed by the Hon'ble Supreme Court in the case of P.D. Agar w al vs. St at e of U.P., AI R 1 98 7 SC 16 7 6 and Ash ok Gu lat i v s. B.S. Jain , AI R 1 98 7 SC 4 24 , had also been considered. 14. It may also be noted that the petitioner was appointed in the year 1977 and he was continued in service till further orders, but the Department had not issued an order of regularisation. Not only that, while the petitioner was in service, he was appointed in another Department against a vacant post in the year 1983. It was in the Deaprtment, where the petitioner was later on appointed i.e. Food and Civil Supplies Department that he was regularised in the year 1992 w.e.f. the year 1983. In other words, the regularisation of the petitioner is made when he was serving in another Department. So far as the services of the petitioner in the earlier Department i.e. C.A.D., Kota are concerned, no order of regularisation was issued despite of the fact that the subsequent order dated 20.06.1978 specifically mentions that the working performance of the petitioner had been reported satisfactory by his immediate controlling officer. In other words, non-issuance of an order of regularisation by the Department concerned was not on account of any fault of the petitioner. The continuation of the services of the petitioner since 14 the year 1977, upto the coming of order of regularisation in the year 1992, cannot term the services of the petitioner to be on adhoc/ temporary appointment. Adhoc or temporary appointments, by its nature, are made in administrative exigencies but that would not permit the employer to continue such services for years together without issuing an order of regularisation. The Hon'ble Supreme Court had observed in the case of N.S.K. Nay ar & Or s. vs. Un ion of I n dia & Or s., AI R 1 9 9 2 SC 1 5 7 4 that, "Denial of right of regularisation and consequential benefit of the grade, is wholly arbitrary and is violative of Article 16 of the Constitution of India." 15. A Division Bench of this Court, in the case of Syed Mansoor Ali vs. St at e of Raj ast h an & Anr ., 1 9 88 ( 2 ) RLR 6 1 6 , observed that: - "Looking to the facts and circumstances where the petitioner was appointed after due process of selection and continued on the post then such an appointment can only be described as substative appointment even if such person was appointed as temporary." 16. Another Division Bench of this Court, in the case of Bh anw ar Lal Malak ar vs. St at e of Raj . & Or s., 1 99 0 ( 1) RLR 5 7 6 , has held that: - "Since the petitiner was appointed after regular selection by a duly constituted Comittee, even though, on temporary basis, and since the post itself was temporary at that time, his services cannot be ignored for the purposes of seniority, and it can be said that he was appointed in a substative capacity to a temporary post." 15 17. Coming to the case of The Dir ect Recr u it Class- I I En gin eer in g Officer s' Assciat ion & Or s. vs. St at e of Mah ar ash t r a & Or s., AI R 1 9 9 0 SC 1 6 0 7 , it is to be noted that the Constitution Bench of the Apex Court had considered the issue in para 44, as under: - "44. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (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 regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to