JUDGMENT
Mansoor Ahmad Mir, J.
1. Petitioner-Anganwadi Worker came to be directed to take over the charge from one Suit. Anchalla Razdhan and work as Supervisor on honorarium in terms of order No. CDPO/S/84/352-53 dated 04.06.1984-an-nexure A, but salary attached to the said post was not released and disbursed to her. Advertisement notice No. 12 of 1986 dated 24.12.1986 came to issued for selection/ appointment of Supervisors and she also applied within the stipulated period despite of the fact that at that point of time Recruitment Rules were not framed. During the course of selection process a letter No. SWKA/Estt-87/2512 dated 30.11.1987 came to be addressed by respondent No. 3 to Chairman SSRB in terms whereof recommendation was made for appointing petitioner and two other Anganwadi Workers as Supervisors on adhoc basis till selection. SSRB conveyed approval to respondent No. 3 vide letter No. SSB/979-80/87 dated 18.12.1987 and accordingly petitioner and other two Anganwadi Workers came lo be appointed as Supervisors for a period of three months or till selection whichever earlier annexure PE. Services of petitioner came to be regularized as Supervisor in the Social Welfare Department vide order No. 301-SW of 1989 dated 11th December, 1989 w.e.f. 11th September, 1989. Tentative seniority list came to be issued on 16th February, 1990 and she came to know about it in the year 1996 when respondents initiated the process of promotion of Supervisors to next higher grade Chief Development Project Officers/Assistant Chief Development Project Officers.
2. In nutshell the grievance of the petitioner is as under:
That respondents were under legal obligation to regularize the services of petitioner as Works Supervisor with effect from 04.06.1984 in terms of annexure-PA and her seniority was to be fixed at sr. No. 16 instead of sr.No. 68 and respondents had to consider her for promotion to the post of Chief Development Project Officer/ Assistant Chief/Development Project Officer.
3. Respondents have not filed reply and the averments contained in the writ petition have remained un-rebutted.
The crucial points involved in this writ petition are as under:
(i) Whether the service of the petitioner as Supervisor was to he regularized with effect from 4th June, 1984?
(ii) Whether she was to be placed at Sr.No. 16 instead of Sr.No. 68 in the seniority list?
(iii) Whether respondents could he directed to consider the petitioner for promotion to the post of Chief Development Project Officer/Assistant Chief Development Project Officer?
4. It is profitable to reproduce order No. 301-SW of 1989 dated 11.12.1989 herein, which reads as under:
In continuation to Govt. order No: SW-284 of 1989 dated: 10.11.1989 issued under endorsement no: SW/Estt-225/89 dt: 15.11.1989 sanction is accorded to the regnlarization of the adhoc appointments made from time to time till 29.12.1988 as indicated in the Annexure to this order with effect from 11.9.1989 subject to the fulfillment of all other pre-requisites of eligibility. The regular appointees will remain on probation for a period of one year with effect from 11.9.1989.
The inter-se seniority of the appointees will be decided separately. By order of the Government of Jammu & Kashmir.
5. In terms of Government order referred hereinabove, respondent regularized services of adhoc appointees made from time to time till 29.12.1988 with effect from 11.09.1989 and accordingly the services of petitioner also came to be regularized in terms of the said order with effect from 11.09.1989. There was no such scheme/rule/order in vogue and in force whereby and whereunder the services of the petitioner could have been regularized with effect from 04.06.1984. It is also pertinent to mention herein that petitioner has not challenged the order dated 11th December, 1989 and sought directions to respondents to regularize her services with effect from 4th June, 1984 but accepted the status and received the benefits from 11.09.1989 in terms of order No. 301-SW of 1989, referred hereinabove. Petitioner has filed writ petition after lapse of seven years. Thus, petitioner is caught by delay and laches.
6. Even otherwise the writ petition merits to be dismissed because it is beaten law of the land that adhoc/honorarium services or appointments made in de hors of rules could not be regularized and counted for seniority.
7. Apex Court in case filled K. Madalaimuthu and Anr. v. State of Tamil Nadu and Ors. reported in 2006 AIR SCW 3515 has observed as under:
24. On a consideration on the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears to be the one canvassed on behalf of the appellants, the decisions cited by Mr. Rao have been rendered in the context of Rule 10(a)(i)(1) and the other relevant rules which are also applicable to the facts of the instant case. Apart from the above, the law is well settled that initial appointment to a post without recourse to the rules of recruitment, is not an appointment to a service as contemplated under Rule 2(1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact, Rule 39(c) of the General Rules indicate dial a person temporarily promoted in terms of Rule 39(a) is required to he replaced as soon as possible by a member of the service who is entitled to the promotion under the rules. It stands to reason that 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.
25. In the instant case the authorities, on the strength of the several Government Orders giving retrospective effect to the regularization of the promotees have taken the date of initial appointment of such promotees as the starting point of their seniority. In our view, such a course of action was erroneous and contrary to the well established principles relating, to determination of seniority. In our view, the High Court took an erroneous view in the matter in applying Rule 4 of the General Rules and holding that the period during which the promotees had initially discharged the duties of District Registrars, though appointed temporary under Rule 10(a)(i)(1) was lo he counted for determining their seniority. The decision of this Court in the case of L. Chandakishore Singh (supra) relied on by Shri Venkataramani, did not involve the question of persons appointed outside the service as a stop-gap arrangement. The fact situation of the said decision is different from the fact situation of the instant case which finds from the decisions cited by Mr. Rao.
26. We, therefore, set aside the order passed by the High Court and direct the concerned respondents to re-determine seniority of the appellants in relation to the promotees after reckoning the starting point of seniority of such promotees from the dale on which of their services were regularized and not from the date of their initial appointment under Rule 10 (a)(i)(1) of the General Rules.
Apex Court in case titled Indu Shekhar Singh v. State of U.P. reported in 2006 AIR SCW 2582 has observed as under:
21. Seniority, as is well settled, is not a fundamental right. It is merely a civil right. See Bimlesh Tanwar v. State of Haryana , paragraph, 9 and also Prafulla Kumar Das and Ors. v. State of Orissa and Ors. .
8. Apex Court in case titled Santosh Kumar v. G.R. Chawla , has observed as under:
13. On the point whether the appellants/ writ petitioners were entitled to the seniority from the date of their original initial appointment, the High Court observed as follows:
In the present case rule of the seniority clearly provides that seniority in any category or cadre post shall be determined from the date of the order of substantive appointment. The posts of Drug Inspectors was within the purview of Public Service Commission. But, ad hoc appointments were made. The said ad hoc appointments cannot be deemed to be the substantive appointments, hence the period during which ad hoc appointees worked, cannot be counted for the purposes of seniority.
18. The common judgment passed by the High Court, in our view, does not call for any interference and all the appeals fail and are dismissed. However, there will be no order as to costs.
9. This writ petition also merits to be dismissed on the ground that petitioner has
Missing Matter
10. Apex Court in case titled Indu Shekhar Singh v. State of U.P. reported in 2006 AIR SCW 2582 has observed as under:
55.1 here is another aspect of the matter. The Appellants herein were not joined as parties in the writ petition filed by the Respondents. In then absence, the High Court could not have determined the question of inter se seniority. See Prabodh Verma and Ors. v. State of U.P. and Ors. . In Ram Janam Singh (supra) this Court held.
…It is now almost settled that seniority of an officer in service is determined with reference to the dale of his entry in the service which will be consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons, can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority. But, whether such group of persons belong to a special class for any special treatment in matters of seniority lies to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under Article 30 of the Constitution. The far-reaching implication of such rules need not be impressed because they purport to affect the seniority of persons who are already in service.
11. In view of the above discussion, writ petition is dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated.