CASE NO.: Appeal (civil) 4029-30 of 1995 PETITIONER: FOOD CORPORATION OF INDIA RESPONDENT: THANESWAR KALITA AND ORS. ETC. DATE OF JUDGMENT: 06/03/1995 BENCH: K. RAMASWAMY & B.L. HANSARIA JUDGMENT:
JUDGMENT
1995 (1) SCR 516
The following Order of the Court was delivered :
Leave granted.
We have heard the counsel on both the sides. These appeals arise from the
orders of the High Court of Guwahati dated 15.5.1991 and 3.7.1992 in Civil
Rule Nos. 793/89 & 4466/91. The Division Bench of the High Court directed
the appellants to treat the entire period of ad hoc service of the
respondents on regular basis and further declared that they must be deemed
to have been in continued service as Assistant Managers w.e.f. 30th August,
1973 and are entitled to seniority and also to other benefits. Calling in
question these orders, these appeals have been filed.
It is not in controversy that the respondents were appointed on ad hoc
basis de hors the rules. In view of the judgment of the Constitution Bench
of this Court in The Direct Recruit Class II Engg. Officers’ Assn. and Ors.
v. State of Maharashtra, AIR (1990) SC 1607 and several decisions following
that, it is settled law that if the appointments are made according to
rules, though initially on ad hoc basis, and are continued for long time,
on regularising the service, the entire period of temporary service would
be counted for seniority. If such appointments are in excess of quota, the
officiating period would not be treated for seniority, as the appointments
then become fortuitous; and the persons appointed in excess of the quota
are not entitled to count the entire period of service for seniority. The
condition precedent being that the appointments are made within quota and
are made in accordance with rules. In other words, if the appointments were
not made in accordance with rules, though the appointees might have
continued for a long time, the entire period of service would be fortuitous
and so would not be counted towards seniority.
In this case, admittedly, the promotion of the respondents was not in
accordance with rules; but they were delayed on ad hoc basis due to the
exigencies of non-availability of the direct candidates. Thereby, it is
clear that the respondents were not promoted according to rules. In other
words, they were promoted de hors the rules. Though they have continued for
a long time, the entire length of service should be considered as
fortuitous and should not be counted towards their seniority. The High
Court, there-fore, was clearly in error in directing to treat their entire
service as on regular basis,
The appeals are allowed accordingly. It is needless to mention that from
the date of the regularisation to service as per rules, the respondents are
entitled to all the benefits. It is made clear that by the circulars issued
by the Corporation, the pay drawn by the respondents during this period,
stands protected. No costs.