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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6380 OF 2006
1.Shri.Balasaheb Chandrarao More
and others. ...Petitioners
vs.
1.Shri.Suresh Kisanrao Porje
and others. ...Respondents.
---
Mr.P.K.Dhakephalkar with N.V.Bandiwadekar, for
Petitioners.
Ms.Ranjana Todankar i/b. S.S.Pakale,for Respondents 1 to4
Mr.S.C.Prabhu, for Respondents 11,16,41,43,48 & 52.
Mr.A.Y.Sakhare i/b. Y.K.S.Legal, for Respondents 147,148.
Ms.M.P.Thakur, AGP for Respondents 152,153,155.
and
WRIT PETITION NO.1696 OF 2007
1.The Government of Maharashtra
and another. ...Petitioners.
vs.
1.Shri.Suresh Kisanrao Porje
and others. ...Respondents
---
Ms.M.P.Thakur, AGP for Petitioners.
CORAM: D.K.DESHMUKH &
J.P.DEVADHAR, JJ.
DATED: 30th September,2008.
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P.C.:-
1. By both these petitions, the same order
passed by the Maharashtra Administrative Tribunal is
challenged and therefore, both these petitions can be
conveniently disposed of by a common order.
2.
The facts that are relevant and material for
deciding these two petitions are that by the order of
the Maharashtra Administrative Tribunal which is
impugned in the petitions, the Maharashtra
Administrative Tribunal has decided three original
applications i.e. original application no.861 of
2005, 908 of 2005 and 159 of 2006. These three
original applications were filed by the agricultural
officers who were appointed on the recommendations of
the Maharashtra Public Service Commission as per the
recruitment rules. In these three original
applications they challenged the Government
Resolution issued by the Government of Maharashtra
dated 23.9.2005, 26.9.2005 and 27.9.2005. By the
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Government Resolution dated 23.9.2005 issued under
Article 162 of the Constitution of India the services
of 755 persons who were appointed as Agricultural
Officers came to be regularised from the date of
their initial appointment. By the Government
Resolution dated 26.9.2005 a final seniority list of
the officers holding the post of agricultural officer
was published which included names of these 755
agricultural officers.
ig By the Government resolution
dated 27.9.2005, 142 out of these 755 Agricultural
officers were promoted to the higher post on the
basis of list dated 26.9.2005. In short, in these
three original applications, the action of the State
Government regularising the services of 755
agricultural officers, giving them seniority over the
agricultural officers who were appointed on
recommendation of the Maharashtra Public Service
Commission and promoting them to the higher post was
challenged.
3. The Government of Maharashtra framed rules
viz. “Agricultural Officers (Class III) (Recruitment)
Rules 1980” (hereinafter referred to as “1980 Rules”)
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governing the recruitment to the post of agricultural
officer (Class III). These rules provided for
filling in 50% of the posts of Agricultural officers
(class III) by direct recruitment of the candidates
who are selected by the selection board after
advertisement in the official Gazette and it also
provides for filling in 50% posts by promotion of
departmental candidates. The Government of
Maharashtra issued
resolution dated 28.8.1981. By
that resolution the post of Agricultural officer was
given Gazetted status with effect from 1.5.1981. The
consequence was that the personnel who were holding
the post of agricultural officer (Class III) on and
from 1.5.1981 became Gazetted officers. The other
consequence was that now because of the regulation
framed by the State Government under Article 320 of
the Constitution of India appointment on regular
basis to the post of Agricultural officer could be
made only on the recommendation of Maharashtra Public
Service Commission.
4. In exercise of its power under Article 309
of the Constitution of India, the Government of
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Maharashtra framed “The Maharashtra Agricultural
service, Class I, Class II and Class II (Junior) in
the Directorate of Agriculture (Land and Water
Management Group) (Recruitment) Rules, 1983”
(hereinafter referred to as “1983 Rules”). These
rules provided that appointment to the post of
Agricultural officer Class II (Junior) was to be made
50% by nomination of the candidates recommended by
Maharashtra Public
ig Service Commission and 50% by
promotion of Agricultural supervisors. Before 1983
Recruitment rules were framed i.e. from 1.5.1981 to
4.8.1983, 63 persons were appointed on ad-hoc basis
as Agricultural Officers (Class III), and thereafter
after the 1983 Rules were framed i.e. from 5.8.1983
to 31.12.1984 about 692 persons were appointed on ad-
hoc basis as Agricultural officers (Class III).
5. It appears that the Government moved a
proposal before the Maharashtra Public Service
Commission for obtaining its approval for
regularisation of the services of these 755
Agricultural officers (Class II). In the year 1994,
the Maharashtra Public Service Commission held an
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examination for these 755 Agricultural Officers and
the Maharashtra Public Service Commission forwarded
the result to the State Government by letter dated
21.4.1995 and recommended that services of 533
Agricultural officers may be regularised from the
date of declaration of the result. It may be pointed
out that though the result has not actually been
declared by the State Government, it has come on
record that 533 Agricultural Officers have passed the
examination. It appears that the State Government
did not agree with the recommendation of the
Maharashtra Public Service Commission about the
regularisation of the services of 533 Agricultural
officers from the date of declaration of the result,
and therefore, it issued a Government Resolution in
exercise of its power under Article 162 of the
Constitution of India regularising the services of
755 Agricultural Officers from the date of their
initial appointment which was on ad-hoc basis. By
further resolution seniority of these 755
Agricultural officers was fixed from the date of ad-
hoc appointment. It may be pointed out here that in
accordance with 1983 Rules, the Maharashtra Public
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Service Commission held examination and pursuant to
the recommendation made by M.P.S.C. about 207 persons
were appointed as Agricultural Officer Class II
(Junior) from the year 1991 till 1994. The executive
decision of the State Government of granting
regularisation in service to all 755 agricultural
officers from the date of their initial appointment,
therefore, had adverse effect on the interest of
those agricultural officers who were recruited on the
recommendations of the Maharashtra Public Service
Commission because they became junior in the cadre
of Agricultural officer to those officers, because
not only 755 agricultural officers were given
seniority above them but 142 of them were even
promoted to the higher post, and therefore, it is for
these reasons that those directly recruited persons
had filed the above referred three original
applications challenging the action of the State
Government. Those three original applications have
been decided by the Maharashtra Administrative
Tribunal by its judgment and order dated 2.8.2006.
The Maharashtra Administrative Tribunal has set aside
all the three Government resolutions which were
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challenged before it. The M.A.T. directed the State
Government to regularise the services of 535
agricultural officers who were declared as successful
candidate in the examination conducted by the
Commission from the date of communication of the
result by the Commission to the State Government.
The orders giving promotion were also set aside and
the Government was directed to make promotion in
accordance with the fresh seniority list that it may
prepare pursuant to the directions of the M.A.T. Some
out of 755 Agricultural Officers have filed writ
petition no.6380 of 2006 challenging the order of the
M.A.T. setting aside the Government Resolutions
challenged before it and claiming that they are
entitled to be regularised in service from the date
of initial appointment. The Government has filed
writ petition no.1696 of 2007 also challenging the
order of the M.A.T.
6. The learned Counsel appearing for
petitioners submitted that the Tribunal has directed
the Government to regularise the services of 535
Agricultural officers who have passed the examination
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conducted by the M.P.S.C, from the date of
communication of the result of the examination. He
submitted that however once the said 535 Agricultural
officers have passed the examination conducted by the
M.P.S.C. their regularisation should relate back to
their initial appointment and not from the date of
communication of the result, otherwise it would not
be regularisation but it would be a fresh
appointment. The
learned Counsel relied on the
observations of the Supreme Court in the judgment in
the case of “The Direct Recruit Class-II Engineering
Officers’ Association and others Vs. State of
Maharashtra and others, AIR 1990 Supreme Court 1607”,
more particularly on the observations found in
paragraph 44(b) of the judgment. The learned Counsel
also relied on the observations of the Supreme Court
in its judgment in the case “Union of India and
another Vs. Lalita s. Rao and others, (2001)5 Supreme
Court Cases 384”. He submitted that since these
agricultural officers continued in service
uninterruptedly and they have also passed examination
conducted by M.P.S.C., their regularisation should be
from the date of initial appointment and not from the
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date of result of the examination.
7. It was further submitted that the Government
was required to recruit these Agricultural officers
in view of the extreme urgency and the administrative
exigency, more particularly, in view of the projects
undertaken with the World Bank Aid and at the
relevant time the candidates selected from the
Commission were
not available. It was further
submitted that all the appointees were within the
prescribed age limit and they also possessed
educational qualification prescribed under the rules.
He submitted that their appointments were made by
calling names through the Employment Exchange and
after interviewing the candidates. It was submitted
that since they continued in service for a number of
years, the Government has rightly, in its power under
Article 162 of the Constitution of India, issued
Government Resolution and regularised their services
from the date of their initial appointment.
8. It was submitted that the State Government
has entered into series of correspondence with the
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MPSC with a view to seek approval of the MPSC for
regularising the services of those Agricultural
officers. It was submitted that the MPSC approved
the proposal by its letter dated 31.5.1990 and
19.6.1990, whereby the MPSC agreed that the
appointments of all the Agricultural officers were
treated as made validly as per the 1980 Recruitment
Rules. It was submitted that this amounts to MPSC
giving its approval for regularisation of services of
the Agricultural officers. It was also submitted that
though the Tribunal relied on the judgment of the
Supreme Court in the Case of “Secretary, State of
Karnataka and others Vs. Umadevi (3) and others, 2006
Supreme Court Cases (L&S) 753”, the Tribunal failed
to appreciate the directions issued by the Supreme
Court regarding one time regularisation of the
service of the employee. It was submitted that
therefore it can be said that the decision of the
State Government to regularise the services of the
Agricultural Officers was in consonance with the
judgment of the Supreme Court in “Umadevi” case,
9. Both the petitions were opposed only by the
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Agricultural officers who were appointed on their
names being recommended by the MPSC and who had filed
the original applications before the M.A.T.,
therefore, they are hereinafter referred to as
“contesting respondents”. The learned Counsel
appearing for contesting respondents submitted that
once recruitment rules were framed in exercise of
power under Article 309 of the Constitution of India
in the year 1983,
the State had no authority to
exercise its power by issuing Resolution under
Article 162 of the Constitution of India to regulate
the services of ad-hoc appointees. The power under
Article 162 of the Constitution of India cannot be
invoked in the teeth of Recruitment Rules as has been
held by the Supreme Court in catena of judgments. It
was further submitted that from 1.5.1981, the posts
became gazetted and came under the purview of MPSC
and therefore, any appointed to the post on regular
basis could be made only of a candidate who has been
selected and recommended by the MPSC. The executive
power of the State under the Constitution cannot be
used to nullify the authority of the MPSC. It was
submitted that neither under the 1980 Rules nor under
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the 1983 Rules the Government has power to relax any
condition, and therefore, the Government Resolution
issued under Article 162 of the Constitution of India
is contrary to the Recruitment Rules framed under
Article 309 of the Constitution of India.
10. It was further submitted that all the
appointments of Agricultural officers made between
1.5.1981 to 4.8.1983 and 5.8.1983 to 31.12.1984 are
in violation of (i) Maharashtra Public Service
Commission (Exemption from Consultation)
Regulation,1965; (ii) Recruitment Rules of 1980 and
(iii) Recruitment Rules of 1983, and therefore,
exercise of powers under Article 162 of the
Constitution of India is bad in law, without
authority and in violation of Articles 14 and 16(1)
of the Constitution of India. It was submitted that
appointments of 755 Agricultural officers was bad in
law and was not made in compliance with 1980 Rules
and 1983 Rules as none of the provisions as contained
in Rules 3 and 4 of 1980 Rules i.e. advertisement in
Gazette, selection by board and reservation were
followed nor the 1983 Rules were followed, because
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under 1983 Rules appointment should have been made
only of the candidates who are recommended by MPSC.
It was submitted that appointment of all the 755
Agricultural officers was made by Director of
Agricultural who has no authority under any of the
Rules to make appointment without publishing
advertisement in the Official Gazette and without
candidate being selected by Selection Board. It was
submitted that the Government has framed Regulations
under proviso to Article 320 (3) of the Constitution
in the year 1965 whereby exemption from consultation
with the Public service commission is granted to the
Government only for making appointment to Gazetted
posts for a period not exceeding one year, and for
making appointment to Gazetted posts for a period
exceeding one year consultation with the MPSC is
mandatory. It is submitted that the appointments
were not irregular but they were illegal. It is
submitted that the petitioners have not been able to
show anything which would even indicate that the
finding recorded by the M.A.T. that the appointment
of all 755 Agricultural officers were illegal, is bad
in law. In the submission of the learned Counsel
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appearing for contesting respondents, therefore,
there is no room for this Court to interfere with the
well considered and detail order passed by the MAT.
The learned Counsel relied on the following judgments
of the Supreme Court:-
(i) “B.N.Nagarajan Vs. State of Karnataka, AIR
1979 Supreme Court 1676,
(ii)
“J & K Public Service Commission & others
Vs. Dr.Narinder Mohan and others, (1994)2 Supreme
Court Cases 630”,
(iii) “A.Umarani Vs. Ragistrar, Co-operative
Societies and others, (2004)7 Supreme Court Cases
112”,
(iv) A.K.Bhatnagar & others vs. Union of India
and others, (1991)1 Supreme Court Cases 544,
(v) Keshav Chandra Joshi & others etc. Vs. Union
of India and others, AIR 1991 Supreme Court 284,
(vi) Y.H.Pawar Vs. State of Karnataka and
another, (1996)10 Supreme Court Cases 444,
(vii) Post Master General, Kolkata Vs. Tutu Das
(Dutta), (2007)5 Supreme Court Cases 317.
(viii) Kendriya Vidyalaya Sangathan and others Vs.
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L.V.Subramanyeswara and another, (2007)5 Supreme
Court Cases 326.
It was submitted that in view of the
findings of M.A.T. and the law laid down by the
Supreme Court regularisation under Article 162 is not
permissible and the services of ad-hoc illegal
appointees cannot be computed for the purpose of
seniority as their entry was illegal and against the
1980 recruitment Rules as also 1983 Rules and
Regulation of 1965 framed under Article 320 of the
Constitution by the State Government.
12. If the record of the case is perused in the
light of these rival submissions, it is clear that
the Maharashtra Administrative Tribunal has written a
detail and well reasoned judgment. A clear finding
has been recorded on each and every relevant aspect
of the matter. The Supreme Court has considered the
issue regarding regularisation of services in public
employment, in the light of the all the relevant
previous judgments of the Supreme Court, in its
judgment in the case “Tutu Das” referred to above.
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The observations of the Supreme Court found in
paragraph (12) and (13) of that judgment, in our
opinion, are relevant, they read as under:-
“12. What was considered to be
permissible at a given point of time keeping
in view the decisions of this Court which
had then been operating in the field, does
no longer hold good. Indisputably, the
situation has completely changed in view of
a large number of decisions rendered by this
Court in last 15 years or so. It was felt
that no appointment should be made contrary
to the statutory provisions governing
recruitment or the rules framed in that
behalf under a statute or the proviso
appended to Article 309 of the Constitution
of India.
13. Equality clause contained in
Articles 14 and 16 of the Constitution of
India must be given primacy. No policy
decision can be taken in terms of Article 77
or Article 162 of the Constitution of India
which would run contrary to the
constitutional or statutory schemes.”
From the observations quoted above, two things are
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clear (i) the State should not make any appointment
contrary to the recruitment rules framed under
Article 309 of the Constitution of India, and (ii)
the State cannot take any policy decision in exercise
of its power under Article 77 or Article 162 of the
Constitution of India which would run contrary to the
constitutional or statutory schemes. Now it goes
without saying that the rules framed in exercise of
power under Article 309 are statutory rules. It is
evident from the communication from the MPSC dated
31.5.1990 and 19.6.1990 which have been relied on by
the petitioners that it was the case of the State
Government that appointment of 755 Agricultural
officers were made under 1980 Rules. So far as 1980
Rules are concerned they have been quoted verbatim by
M.A.T. in paragraph 21 of its judgment. Perusal of
those rules shows that so far as the appointment to
be made by nomination are concerned, they have to be
made after the “post is advertised in official
Gazette” and “selection of the candidates is by the
service selection board”. It is to be noted that at
the relevant time, the legislature of Maharashtra
State had passed an Act for constitution of selection
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board for recommending candidates for appointment in
Class III post under the State Government as also
various other statutory authorities and local
authorities. Thus, two primary requirements of 1980
Rules were that the post should be advertised in
official Gazette and candidates should be selected by
the Selection Board. The M.A.T. in paragraph 15 of
its judgment has recorded a clear finding that at no
stage before making appointment of 755 Agricultural
officers, those posts were advertised in the
official Gazette. It is also common ground that the
appointments were made by the Director of
Agricultural after interviewing the candidates and
the candidates were not selected by the subordinate
service selection board. Perusal of 1980 Recruitment
Rules which are quoted as observed above in paragraph
21 of the M.A.T. shows that those Rules were framed
by the State Government in exercise of its power
under Article 308 of the Constitution of India.
Thus, the appointment of all 755 Agricultural
officers was contrary to the 1980 Rules which were
framed by the State Government in exercise of its
power under Article 309 and therefore, were statutory
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rules. Perusal of the Government Resolution which has
been issued by the State Government for the purpose
of regularisation of the services of 755 Agricultural
Officers shows that it has been issued in exercise of
power of the State government under Article 162 of
the Constitution of India. A clear finding to that
effect has been recorded by the M.A.T. and that
position is not even disputed before us. From the
above discussion,
now it is clear that the
appointment of 755 Agricultural officers was made in
breach of the Statutory Rules. The appointments were
also contrary to the mandate of Article 14 of the
Constitution of India because the appointments were
made without advertising the posts and the State
Government used its power under Article 162 of the
Constitution of India to regularise what was done in
violation of the Statutory rules and Constitution,
and therefore, in view of the law laid down by the
Supreme Court in its judgment in the case of “Tutu
Das” referred to above and quoted above the
Government Resolution regularising the services of
755 Agricultural officers is illegal.
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13. Further perusal of the judgment of the
Supreme Court in the Case “Tu Tu Das” shows that the
Supreme Court has considered its judgment in the case
of “Umadevi” which is the judgment of the
Constitution Bench of the Supreme Court. In the
judgment, the Supreme Court has extensively quoted
from its judgment in the case “Umadevi” and in
paragraph 15 the Supreme Court after referring the
judgment in “Umadevi” case has observed thus:-
“15. Before considering the submission
of Mr.Roy based upon para 53 of Umadevi(3)
we may notice that in A.Umarani V.
Registrar, Co-op Societies this Court held:
(SCC p.126, para 45)
"45. No regularisation is, thus,
permissible in exercise of the
statutory (sic executive) power
conferred under Article 162 of the
Constitution if the appointments have
been made in contravention of the
statutory rules.””
Perusal of the judgment of the M.A.T. which is
impugned in this petition shows that the M.A.T. has
also relied on the judgment of the Supreme Court in
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Umarani’s case to hold that exercise of power under
Article 162 of the Constitution of India by the State
Government in the present case is illegal. It is to
be noted here that in view of the regulations framed
by the State Government in the year 1965 under
Article 320 of the Constitution of India, it could
make appointment to the Gazetted post only for a
period not exceeding one year. From 1.5.1981 the
post of Agricultural officer Class II Junior became a
Gazetted post and therefore, appointment against the
post without a candidate selected and recommended by
Maharashtra Public Service Commission could have been
made only for a period not exceeding one year, and
therefore by letter dated 25.2.1982, the State
Government directed the Directorate of Agriculture to
make appointment in accordance with 1980 Rules for
one year or till the candidates recommended by MPSC
are made available for appointment. But it is obvious
that the Directorate did not follow the direction of
the State Government contained in the letter dated
25.2.1982 and did not follow the 1980 Rules while
making appointments. However, the appointments were
made by him were only for one year or till the
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candidates selected by MPSC become available. In
paragraph 24 the Maharashtra Administrative Tribunal
has observed thus:-
“We have noted from orders that a
condition is incorporated in it whereby
it is mentioned that all appointments
made to the post of Agricultural
officers are for a period of one year
or
till the candidate
from the Commission is made available.
duly selected
Thus, from the documents placed on
record one undisputed fact emerge that
all appointments of 755 Agricultural
officers are temporary adhoc and
pending regular appointments. With
these undisputed facts we now consider
the points raised before us.”
The Maharashtra Administrative Tribunal has, thus,
recorded a clear finding that appointment of all
these 755 Agricultural officers were adhoc and
pending regular appointments.
14. The learned Counsel appearing for
petitioners heavily relied on the judgment of the
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Supreme Court in the case “The Direct Recruit Class
II Engineering Officers Association and others Vs.
State of Maharashtra and others” and specially on
paragraph 44(B) of that judgment which reads as
under:-
“44(B) If the initial appointment is
not made by following the procedure
laid igdown by the rules but the
appointee continues in the post
uninterruptedly till the regularisationof his service in accordance with the
rules, the period of officiating
service will be counted.”
The learned Counsel submits that assuming that the
appointment of 755 Agricultural officers was not made
following the procedure laid down by 1980 Rules, but
as they have continued in the post uninterruptedly
till the time of regularisation of their services,
period of their officiation in the post has to be
taken into consideration. In our opinion, the
submission of the learned Counsel is not sound. In
making appointment of 755 Agricultural Officers,
there was illegality in the sense that there was not
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only procedural defect but the defect was of
substance, because before their appointments, they
were not selected by the authority which was
contemplated by the 1980 Rules and the post was also
not advertised in the official Gazette. Secondly
paragraph 44(B) contemplates regularisation of
services of those appointees in accordance with the
Rules. Therefore, it implies that the Rules have
provision for
regularisation of the services of
employees who have been irregularly appointed. In the
present case, admittedly, in the 1980 Rules neither
there is any provision for regularisation of the
appointments nor there is any provision for
relaxation of any of the condition laid down in the
Rules. In our opinion, therefore, in this view of
the matter, the appropriate direction which will
apply is one which contained in paragraph 44(A) of
the judgment of the Supreme Court referred to above
in the case of “Direct Recruit Class II Engineering
Officers Association”. Paragraph44(A) of that
judgment reads as under:-
“44(A) Once an incumbent is appointed
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26to a post according to rule, his
seniority has to be counted from the
date of his appointment and notaccording to the date of his
confirmation. The corollary of the
above rule is that where the initialappointment is only ad hoc and not
according to rules and made as stop-gap
arrangement, the officiation in suchpost cannot be taken into account for
considering the seniority.”
In the present case also the initial appointment of
all 755 Agricultural officers was only ad-hoc and was
not made in accordance with the Rules and was made as
stop-gap arrangement till the candidates selected by
Public Service Commission become available and
therefore, their officiation in such posts cannot be
taken into consideration for considering the
seniority. The Supreme Court in its judgment in the
case “Keshav Chandra Joshi Vs. Union of India, AIR
1991 Supreme Court 284” referred to above has
considered the directions issued by the Supreme Court
in its judgment in the “”Direct Recruit Class II
Engineering Officers Association”. The observations
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made by the Supreme Court in paragraph 24 and 25 of
that judgment, in our opinion, are relevant. They
read as under:-
“24. In Direct Recruits’ Case (1990
(2)SCC 715: AIR 1990 SC 1607) the
Constitution Bench of this Court in
which one of us (K.Ramaswamy, J.) was amember, in propositions “A” & “B” in
paragraph ig 47 at page
(Para 44, at p.1627 of AIR) stated:-
745 (of SCC):
“(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 notaccording to the date of his
confirmation.
The corollary of the above rule is
that where the initial appointment isonly ad hoc and not according to rules
and made as stop gap arrangement, the
officiation to such post cannot betaken 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
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28of his service in accordance with the
rules, the period of officiating
service will be counted.”
M/s.Mukhoty and Garg repeatedly asked
us to apply the ratio in the cases of
Narendra Chadha (AIR 1986 SC 638),
Baleshwar Das (AIR 1981 SC 41) and
Chauhan (AIR 1977 SC 251) contending
that the promotees were appointed to
the same post, are discharging the same
duties, ig drawing the same salary,
therefore, they should be deemed to be
given promotion from their initial
dates of appointment. We express our
inability to travel beyond the ratio in
Direct Recruits’ Case. While
reiterating insistence upon adherence
to the rule that seniority between
direct recruits and the promotees has
to be from the respective dates of
appointment, this Court noticed that in
certain cases, Government by deliberate
disregard of the rules promotions were
made and allowed the promotees to
continue for well over 15 to 20 years
without reversion and thereafter
seniority is sought to be fixed from
the date of ad hoc appointment. In
order to obviate unjust and inequitious
results, this Court was constrained to
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29
evolve “rule of deemed relaxation of
the relevant rules” and directed to
regularise the services giving the
entire length of temporary service from
the date of initial appointment for
seniority. To lay down binding
precedent the cases were referred to a
Constitution Bench. In the Director
Recruits’ case, this Court has laid
down clear propositions of general
application
ig in items A to K.
Therefore, to keep the law clear and
certain and to avoid any slant, we are
of the considered view that it is not
expedient to hark back into the past
precedents and we prefer to adhere to
the ratio laid down in the Direct
Recruits’ case.
25. As stated, the Counsel for the
promotees placed strong reliance on
proposition “B” while the counsel for
the “Direct Recruits” relied on
proposition “A”. The controversy is as
to which of the propositions would
apply to the facts of this case. The
proposition “A” lays down that once an
incumbent is appointed to a post
according to rules, his seniority has
to be counted from the date of his
appointment and not according to the
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30
date of his confirmation. The latter
part thereof amplifies postulating that
where the initial appointment is only
ad hoc and not according to rules and
is made as a stop-gap arrangement, the
period of officiation in such post
cannot be taken into account for
reckoning seniority. The quintessence
of the propositions is that the
appointment to a post must be according
to rules and not by way of ad hoc or
stop-gap arrangement made due to
administrative exigencies. If the
initial appointment thus made was de
hors the rules, the entire length of
such service cannot be counted for
seniority. In other words the
appointee would become a member of the
service in the substantive capacity
from the date of his appointment only
if the appointment was made according
to rules and seniority would be counted
only from that date. Propositions “A”
and “B” cover different aspects of one
situation. One must discern the
difference critically. Proposition “B”
must, therefore, be read along with
para 13 of the judgment wherein the
ratio decidendi of Narendra Chadha was
held to have considerable force. The
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31
latter postulated that if the initial
appointment to a substantive post or
vacancy was made deliberately, in
disregard of the rule and allowed the
incumbent to continue on the post for
well over 15 to 20 years without
reversion and still the date of
regularisation of the service in
accordance with the rules, the period
of officiating service has to be
counted towards seniority.
ig This Court
in Narendra Chadha’s case was cognizant
of the fact that the rules empower the
Government to relax the rule of
appointment. Without reading paragraph
13 and Proposition “B” and Narendra
Chadha’s ratio together the true import
of the proposition would not be
appreciated. We would deal with the
exercise of power of relaxing the rule
later. After giving anxious
consideration, we are of the view that
the latter half of Proposition “A”
would apply to the facts of the case
and the rule laid down in that half is
to be followed. If the concerned rules
provide the procedure to fix inter se
seniority between direct recruits and
promotees, the seniority has to be
determined in that manner.”
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32
It is clear from the observations of the Supreme
Court quoted above that the directions contained in
paragraph 44(B) of the judgment of the Supreme Court
in the case “Direct Recruit Class II Engineering
Officers Association” will amply apply in case where
appointment is made by the State Government in
relaxation of the quota deliberately, and in the Rule
there is power given to the Government to relax the
Rules. In the present case it is the direction of the
Supreme Court in paragraph 44(A) which will apply
because as observed above neither in the 1980 Rules
nor in 1983 Rules there is any provision to relax the
Rules. As observed above, the Maharashtra
Administrative Tribunal has, in its well considered
judgment, considered all the relevant aspects of the
matter, and after having heard the learned Counsel
appearing for both the sides for considerable length
of time we have not been able to find any reason to
set aside the order of the Maharashtra Administrative
Tribunal striking down the Government Resolution
under Article 162 of the Constitution of India
regularising the services of 755 Agricultural
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33
officers. In our opinion, there is no merit in both
the petitions. Both the petitions therefore fail and
are dismissed. Rule discharged. No order as to costs.
At the request of the learned Counsel appearing
for petitioners, it is directed that for a period of
eight weeks from today, whatever interim order is
presently operating, shall continue to operate.
ig (D.K.DESHMUKH, J.)
(J.P.DEVADHAR, J.)
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