The facts of above noted writ petitions are interconnected and also somewhat identical to each other, therefore, these petitions have been heard and are being decided together by a common judgement.
2. By Writ Petition-A No.27299 of 2001 Ashok Kumar Pandey and 13 other petitioners have challenged order dated 13.7.2001 passed by District Judge, Allahabad contained in Annexure-8 of the writ petition, whereby private respondents no.2 to 19 have been declared senior to the petitioners on the post of clerks in District Judgeship Allahabad.
3. The brief facts leading to the case are that all the petitioners have been appointed as clerks in District Judgeship Allahabad on ad-hoc basis from 1.10.1986 to 24.5.1989 on different dates. In pursuant thereof they have joined their posts and have been continuously working from the dates of their joining as indicated in paras 2 and 3 of the writ petition. It is stated that by circular letter issued by the High Court in Administrative side on 5.5.1985 a decision was taken to regularise the services of ad-hoc employees and the District Judges were requested to dispose of pending matters of regularization of ad-hoc appointees in accordance with law laid down by a Division Bench of this Court in Writ Petition No.12075 of 1984 U.P. Civil Court's Ministerial Service Association Vs. State of U.P. and others, wherein it has been held that ad-hoc appointees who fulfill the requisite conditions, as laid down in the regularization rules, shall be considered by the District Judge for regularization.
4. It is stated that U.P. Regularization of Ad-hoc Appointments ( On Posts Outside the Purview of Public Service Commission) Rules, 1979 (hereinafter referred to as 1979 Rules) as amended from time to time was rule under which the regularizations were to be done. 1979 Rules were lastly amended on 6.8.1989, whereby Rule 10 was added thereto extending the benefit of regularization to ad-hoc appointments upto subsequent date. A copy of said regularization Rules, 1979 as amended in the year 1989 is on record as Annexure-1 of the writ petition. It is stated that from time to time circulars were issued by the High Court on Administrative side directing the regularization of ad-hoc employees working in the District Judgeship Allahabad who had completed three years service. On the basis of directions so issued the District Judge, Allahabad considered the case of ad-hoc employees for regularization including the petitioners adopting yardstick of length of three years service. All the petitioners as also some other similarly circumstanced ad-hoc employees were regularised by the District Judge, Allahabad vide order dated 5.8.1993. A copy of the order of District Judge, Allahabad dated 5.8.1993 regularising the services of petitioners and other persons are on record as Annexure-2 of the writ petition.
5. It is stated that respondents no.2 to 19 were all appointed as clerks in different District Judgeships other than District Judgeship, Allahabad. All respondents no.2 to 19 were transferred and posted in District Judgeship Allahabad on the basis of their own request and having expressed their willingness to be so transferred, despite their becoming junior to the existing members of the clerical staff in the District Judgeship Allahabad. The dates of joining of respondents no.2 to 19 in District Judgeship Allahabad has been given in para 11 of the writ petition as 14.10.92, 2.12.92, 15.12.92, 22.12.92, 4.2.93, 4.4.93, 9.4.93, 16.4.93, 19.4.93, 20.4.93, 20.4.93, 20.4.93, 21.4.93, 4.5.93, 7.5.93, 11.5.93, 20.5.93 and 21.5.93. It is further stated in para 13 of the writ petition that transfer of each of the respondents no.2 to 19 had been effected on the basis of a specific stipulation to the effect that they would join the Judgeship at the bottom of the list of existing staff. Thus, all the respondents no.2 to 19 were liable to be treated as junior to the petitioners as they had been transferred to the District Judgeship Allahabad on their own request subject to the specific condition of their occupying bottom seniority position, as each of the petitioners had acquired the entitlement for regularization on the dates prior to joining in the District Judgeship Allahabad by the respondents no.2 to 19.
6. It is stated that in the year 1999 proceedings were initiated by the District Judge, Allahabad for determining the seniority position of clerical staff including inter-se seniority of the petitioners vis-a-vis the respondents no.2 to 19. In the said proceedings a report was submitted by III Additional District Judge, Allahabad dated 27.7.1999 to the District Judge, Allahabad. The aforesaid report was accepted by the District Judge, Allahabad by means of order endorsed on the said report on 30.7.1999. A true copy of of the report of III Additional District Judge, Allahabad dated 27.7.1999 bearing endorsement of District Judge, Allahabad dated 30.7.1999 is on record as Annexure-3 of the writ petition.
7. It is stated that thereafter a representation was filed by the respondents no.2 to 19 before the District Judge, Allahabad on 6.8.1999 praying for recall of the order of District Judge, Allahabad dated 30th July, 1999 and claiming themselves to be the senior to the petitioners. A true copy of the representation of respondents no.2 to 19 filed on 6.8.1999 is on record as Annexure-4 of the writ petition. It is stated that the aforesaid application of the respondents no.2 to 19 remained pending. On 3.10.2000 the petitioners moved a representation before District Judge, Allahabad praying for their names to be included in the gradation list and for making promotions on the basis of order of District Judge, Allahabad dated 30.7.1999. True copy of the application of petitioners dated 3.10.2000 filed before the District Judge, Allahabad is on record as Annexure-5 of the writ petition. Thereupon the District Judge, Allahabad constituted a Three Members Committee of Judicial Officers of District Judgeship for considering the entire controversy and in pursuant thereof the aforesaid Committee submitted a report on 23.2.2001. A true copy of which is on record as Annexure-6 of the writ petition. The said Committee submitted a further report dated 28.5.2001. The true copy of which is on record as Annexure-7 of the writ petition. Thereupon the District Judge, Allahabad has passed an order dated 13.7.2001 holding that the respondents no.2 to 19 are senior to the petitioners and direction has been issued for modifying seniority list accordingly. A true copy of the order dated 13.7.2001 passed by the District Judge, Allahabad is on record as Annexure-8 of the writ petition. Feeling aggrieved against which the petitioners have filed instant writ petition.
8. On 25.7.2001 while entertaining the writ petition, this court stayed the effect and operation of order dated 13.7.2001 passed by District Judge, Allahabad. Thereafter the petitioners have filed representation on 26.7.2001 before District Judge, Allahabad for passing appropriate order in terms of interim order dated 25.7.2001 passed by this court in their writ petition. Thereupon, the District Judge, Allahabad has passed order dated 10.8.2001 whereby he has reverted the respondents, who were promoted in the next higher grade and pay on the basis of order dated 13.7.2001 passed by District Judge and promoted the petitioners in their place on officiating basis. The order dated 10.8.2001 passed by District Judge has been challenged by Sri Amar Bahadur Singh and 6 others by filing connected Writ Petition No. 30912 of 2001 and enclosing the said order as Annexure-16 of the said writ petition. The petitioners of writ petition No. 30912 of 2001 have stated in para 26 of writ petition that after determining the seniority of the Clerical staff on 13.7.2001, the District Judge, Allahabad has promoted the petitioners in higher grade of senior clerks and all the petitioners joined their respective posts on 16.7.2001. A copy of promotion order and joining letters of petitioners are on record as Annexure-13 & 14 of their writ petition. In para 28 of the writ petition, it is stated that all the respondents no. 2 to 9 and 7 others have filed writ petition No. 27299 of 2001 against the order dated 13.7.2001 passed by District Judge, Allahabad by concealing material facts and obtained interim order on 25.7.2001 from this Court.
9. Another connected writ petition no. 1245 of 1996 has been filed by Chandra Shekhar claiming to be initially appointed on the post of copyist in Judgeship Allahabad by order of District Judge dated 18.9.1986 after following due procedure by duly constituted selection committee. It is stated that by order of District Judge, Allahabad dated 18.9.1986, 25 persons were appointed on the said post. The candidates mentioned at Sl. No. 1 to 14 were directed to be issued appointment letters forthwith and remaining candidates were placed in waiting list. The name of petitioner finds place at serial no. 22 in the aforesaid order. A photostat copy of the order passed by District Judge, Allahabad on 18.9.1986 is enclosed as Annexure-1 to the writ petition. Thereafter a list was published by which the petitioner alongwith other 11 candidates were also directed to join their duties on the said post and in pursuant thereof petitioner joined duty w.e.f. 4.11.1986. Since then he is continuously working on the post of copyist. In the year 1990 the petitioner made representation to the District Judge-respondent no.2 for regularising his services as he had already completed more than three years continuous satisfactory service. Reminders were also given in that regard. Thereafter the matter was taken up to the Hon'ble Administrative Judge and vide order dated 22.5.1992 the Administrative Judge has directed respondent no.2 to regularise the services of petitioner with effect from the date of his joining i.e. w.e.f. 4.11.1986. A copy of the order passed by Administrative Judge on 22.5.1992 is on record as Annexure-2 to the writ petition. It is stated that some other persons appointed after the petitioner also made their representation to the respondent no.2 seeking their regularisation and it is on the said representation, the respondent no.2 taking into account relevant Rules passed an order on 5.8.1993 directing the regularisation of several candidates laying their claim in that respect.
10. In para-9 of the writ petition it is stated that although the petitioner and some other candidates were ordered to be regularised w.e.f. 4.11.1986 and their names were also mentioned in the list of candidates so directed to be regularised by the order of respondent no.2. The name of petitioner finds place at serial no. 6 in the list attached with the order of respondent no.2 dated 5.8.1993. A photostat copy of the order of respondent no.2 is on record as Annexure-3 to the writ petition. In para 11 and 12 of the writ petition it is further stated that in utter surprise to the petitioner, he has just come to know a week ago that some other candidates who came in the judgeship Allahabad much after the petitioner in the year 1987, 1992 and 1993 etc. are to be extended promotion on higher post and pay scale. After inquiry the petitioner came to know that gradation list has been just recently prepared in the year 1995 in which large number of persons who have been posted in Judgeship of Allahabad on their own request by transfer for giving their earlier claim have been treated to be senior to the petitioner. A copy of relevant extract of gradation list has been annexed as Annexure-4 to the writ petition.
11. In para-14 of the writ petition it is stated that the question of regularisation of petitioner services w.e.f. 4.11.1986 has already become final on the basis of order dated 22.5.1992 of Administrative Judge as well as the order of District Judge which still holds good and in the knowledge of petitioner has neither been modified nor has been rescinded, therefore, respondent no. 2 have apparently no justification for not treating the petitioner to be senior from the persons appointed in this Judgeship in the years 1987, 1992 and 1993 onwards. In para-16 of the writ petition it is further stated that the respondent no.2 himself has already extended all benefits and increments to the petitioner by treating his services regularised w.e.f. 4.11.1986 and in respect thereof has passed order on 1.8.1995 which has been duly incorporated in the Service Book of petitioner, therefore, the stand which is being taken by respondent no.2 treating the petitioner to be junior from the persons who have been posted much after the petitioner's appointment is entirely illegal and unjustified.
12. With the aforesaid assertions, the petitioner has sought a writ of mandamus commanding the respondent no.2 to make necessary correction/modification in the gradation list, contained in Annexure-4 to the writ petition in the light of order as has been passed by Administrative Judge on 22.5.1992 and order of respondent no.2 himself dated 5.8.1993 and treat the petitioner to be senior to the candidates so posted in the Judgeship of Allahabad on being transferred from other districts and further a writ has been sought for directing the respondent no.2 not to give promotion to any person unless the petitioner's claim is adjudicated in respect of seniority over and above the persons so posted on transfer.
13. The aforesaid writ petition was entertained by this Court on 10.1.1996 and as interim measure the petitioner was directed to file a representation before District Judge, Allahabad with a direction to him to look into the grievances of petitioner and dispose of the case of petitioner by speaking order keeping in view the orders dated 22.5.1992 and 5.8.1993 as referred in the writ petition. Thereafter the petitioner has filed an amendment application bringing certain more facts on record by adding in paragraph 17 of the writ petition and grounds of writ petition inasmuch as relief sought in the writ petition, whereby it is stated that representation so directed to be decided by District Judge has been rejected by him vide order dated 5.2.1996. A true copy of which is filed as Annexure-5 (b) to the writ petition. The petitioner has challenged the aforesaid order on various grounds mentioned in the amendment application and also sought a writ of mandamus commanding the respondent no.2 to treat the seniority of petitioner w.e.f. 4.11.1986 and place him above the name of Sri Anil Kumar Srivastava, placed at serial no.124 and after the name of Ravi Kumar, placed at serial no.123 in the seniority list of the Judgeship Allahabad of class III employees in the Grade of Rs. 1200/- - 2040/- ( Old Scale).
14. Sri Ashok Khare, learned senior counsel appearing on behalf of Ashok Kumar Pandey etc. in Writ Petition No.27299 of 2001 has contended that in view of order dated 30.7.1999 already passed by District Judge, Allahabad there exists no occasion whatsoever for present District Judge to have conducted any review of the said order. No such power of review is vested in District Judge for reviewing the order dated 30.7.1999. It is further contended that while passing impugned order the District Judge has referred circular dated 10.11.1993, whereas the petitioners' case for regularization has already been finalized vide order of District Judge 5.8.1993, as such the circular dated 10.11.1993 has no application in case of the petitioners. It is further contended that while passing the order impugned the District Judge has lost sight of the fact that the entitlement for regularization had come into existence on completion of three years ad-hoc service in favour of each of the petitioners and the mere fact that actual order of regularization has been passed on subsequent date is wholly irrelevant for adjudging either the date of regularization of petitioners or the length of service of petitioners for computation of seniority position, as in other words each of the petitioners was entitled for regularization upon completion of three years length of service on ad-hoc basis and it is this date which is relevant for determination of seniority position of the petitioners.
15. It is further contended that although the impugned order dated 13.7.2001 passed by the District Judge, Allahabad refers to Rule 7 of 1979 Regularization Rules but fails to take into account the effect of Rule 4 thereof which clearly provides that regularization of service of ad-hoc appointee is to take place before any regular appointment is being made in the District Judgeship. This mandate of Rule 4 of 1979 Rules cannot be thwarted in around about manner by permitting a large number of posts in the District Judgeship to be filled upon by way of transfer of employees from other District Judgeships on their own requests. Even otherwise the interpretation placed by the District Judge on Rule 4 is erroneous and there exists nothing in Rule 7 which may hold that the petitioners' regularization/seniority is to be computed only from the date of order of regularization.
16. At the strength of assertions made in para 29 of the writ petition it is further submitted that while passing the impugned order the District Judge has also failed to follow the existing practice in the District Judgeship under which even though an order of regularization passed on subsequent date the benefit of seniority has been granted to identically circumstanced employees with effect from the date of their entitlement for regularization. The attention is drawn in this regard to an order of District Judge, Allahabad dated 5.2.1996 passed with regard to one Rajendra Mohan Srivastava who was regularised by order dated 5.2.1996 but granted benefit with effect from 6.5.1987, the date on which he completed three years service on ad-hoc basis. A true copy of the said order is on record as Annexure-9 of the writ petition.
17. At the strength of assertions made in the writ petition No. 1245 of 1996, learned counsel for the petitioner has submitted that since the petitioner has been directed to be regularized w.e.f. 4.11.1986 by order dated 22.5.1992 passed by Administrative Judge of Judgeship and the order dated 5.8.1993 passed by District Judge, therefore, the impugned order dated 5.2.1996 passed by District Judge on the representation of petitioner contrary to the aforesaid orders is wholly erroneous and is not sustainable in the eye of law.
18. In justification of impugned orders detail counter affidavits have been filed by High Court, the reference of which shall be given at relevant place. While supporting the impugned orders learned counsel appearing for High Court Sri Ranjan Srivastava has contended that adhoc services rendered by employee can not be computed for the purpose of length of service in determination of seniority, it is only services rendered in substantive capacity after substantive appointment is computed for the purpose of length of service in determining the seniority and from plain reading of Rule 7 of 1979 Regularization Rules it is clear that the employees can be treated to be substantively appointed only on the date of order of regularization not earlier to it, therefore, the service rendered by writ petitioners on ad-hoc basis cannot be computed towards length of service for determination of seniority of petitioners. In support of his contention learned counsel appearing for the High Court has placed reliance upon several decisions of Apex Court and of this Court also which shall be referred hereinafter at relevant places.
19. Since identical questions are involved in Writ Petition Nos. 27299 of 2001 and 1245 of 1996, therefore, these two petitions have to be dealt with simultaneously, whereas the question involved in the writ petition no. 30912 of 2001 would be settled on the basis of findings in the aforesaid writ petitions.
20. Now questions arise for consideration are as to whether the petitioners of writ petition no. 27299 of 2001 and petitioner of writ petition no. 1245 of 1996 could be regularized from the date of their initial appointment on ad hoc basis or they could be regularized from the date on which they have continuously worked on ad hoc basis for three years or from the date of the orders of regularization passed in respect of them and as to whether the services rendered by the petitioners on ad hoc basis can be computed for determination of seniority or as to whether the length of service for the purpose of determination of seniority can be computed from the date of substantive appointment i.e. from the date of order of regularization?.
21. These questions are interconnected and interdependent upon each other, therefore, it would be appropriate to deal with them simultaneously. In this connection, it is to be noted that recruitment on the post of clerks in subordinate civil courts, is governed by the provisions of The Subordinate Civil Courts Ministerial Establishment Rules, 1947 (in short referred to as the 1947 Rules), as amended from time to time. It is not in dispute that the petitioners were initially appointed on ad-hoc basis without following the procedures prescribed under the aforesaid 1947 Rules . It is further not in dispute that they have been regularised on the post of clerks under the provisions of the U.P. Regularisation of Ad Hoc Appointments ( on posts outside the purview of the Public Service Commission) Rules, 1979, as amended on 7.8.1989. By virtue of Rule 2 of 1979 Rules, they have overriding effect notwithstanding anything to the contrary contained in any other rules or orders.
22. Rule 4 of 1979 Rules deals with regularization of ad hoc appointments which reads as under:
"4. Regularisation of ad hoc appointments.-(1) Any person who-
(i) was directly appointed on ad hoc basis before January1, 1977 and is continuing in service, as such, on the date of commencement of these rules;
(ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and
(iii) has completed or, as the case may be, after he has completed three years continuous service; shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.
(2) In making regular appointment under these rules, reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories, shall be made in accordance with the orders of the Government in force at the time of recruitment.
( 3) For the purpose of sub-rule (1), the appointing authority shall constitute a Selection Committee and consultation with the Commission shall not be necessary.
(4) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority as determined, from the date of order of appointment and, if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered necessary to judge their suitability.
(5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4).
(6) The Selection Committee shall prepare a list of the selected candidates, the names in the list being arranged in order of seniority, and forward it to the appointing authority."
23. The aforesaid Rules were further amended by notification dated 23.3.1984 whereby Rule 9 was added in the original 1979 Rules,and the rules were extended and were made applicable to any person directly appointed on ad hoc basis on or before 1st May 1983 and continuing in service as such on the date of of commencement of the U.P. Regularisation of Ad-hoc Appointments ( on the posts Outside the Purview of the Public Service Commission) ( Amendment ) Rules, 1984.The aforesaid rules were further amended by notification dated 7th August 1989 whereby Rule 10 was added and made applicable mutatis mutandis to any person directly appointed on ad hoc basis on or before 1st October, 1986 and continuing in service as such on the date of commencement of the U.P. Regularisation of Ad hoc Appointment (on Posts Outside the Purview of the Public Service Commission) (Second Amendment) Rules, 1989 i.e. till 7.8.1989.
24. Rule 5 of 1979 Rules deals with the appointments on recommendation of selection committee constituted under Rule-4(3) of 1979 Rules. Rule 6 provides that that appointments made under these rules shall be deemed to be under the relevant Service Rules or orders, if any. Rule 7 thereof, deals with the seniority of persons appointed under these rules, which shall be computed from the date of order of appointment under 1979 Rules.
25. For better appreciation of the controversy, it would be useful to extract the provisions of Rules 5, 6, 7 8, 9, 10 of 1979 Rules , as amended from time to time as under:
"5. Appointments. - The appointing authority shall, subject to the provisions of sub-rule(2) of Rule 4 made appointments from the list prepared under sub-rule (6) of the said rule in the order in which their names stand in the list.
6. Appointments to be deemed under the relevant service rules, etc. - Appointments made under these rules shall be deemed to be under the relevant Service Rules or orders, if any.
7. Seniority. - (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.
(2) If two or more persons are appointed together, their seniority inter se shall be determined in the order mentioned in the order of appointment.
8. Termination of service. - The services of a person, appointed on ad hoc basis who is not found suitable, or whose case is not covered by sub-rule(1) of Rule 4 of these rules, shall be terminated forthwith and, on such termination, he shall be entitled to receive one month's pay.
9. The provisions of these rules shall apply, mutatis mutandis, also to any person directly appointed on ad- hoc basis on or before May, 1 1983 and continuing in service as such as the date of commencement of the Uttar Pradesh Regularization of Ad hoc Appointments( on Posts Within the Purview of the Public Service Commission), ( Amendment) Rules 1984.
10. Extension of the rules. - The provisions of these rules shall apply mutatis mutandis also to any person directly appointed on ad hoc basis on or before October 1, 1986 and continuing in service as such, on the date of commencement of the Uttar Pradesh Regularization of Ad hoc Appointment( on Posts Outside the Purview of the Public Service Commission)Second Amendment) Rules, 1989."
26. Although, the provisions of Rule 19 of 1947 Rules deals with the seniority in service which shall ordinarily be determined from the date of confirmation, but the said provisions are subject to the provisions of U.P. Govt. Servants Seniority Rules, 1991, as amended from time to time. By virtue of Rule 2 the provisions of said rules shall apply to all Government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution. By virtue of Rule 3, 1991 Rules have overriding effect upon other service rules, notwithstanding anything to the contrary contained in any other service rules and existing earlier. Rule 4 (g) of 1979 Rules defines "service rules" which means the rules made under the proviso to Article 309 of the Constitution, and where there are no such rules, the executive instructions issued by the Government, regulating the recruitment and conditions of service of persons appointed, to the relevant service. Rule 4(h) defines "substantive appointment" which means an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the service rules relating to that service.
27. Rule 8 of 1991 Rules deals with the seniority where appointments are made by promotion and direct recruitment both. Rule 9 provides for preparation of the seniority list which envisages that as soon as may be after appointments are made to a service, the appointing authority shall prepare a tentative seniority list of the persons appointed substantively to the service in accordance with the provisions of these rules. Thereafter the tentative seniority list shall be circulated amongst the persons concerned inviting objections by a notice of reasonable period, which shall not be less than seven days from the date of circulation of the tentative seniority list. The appointing authority shall thereafter disposing off the objection by a reasoned order issue seniority list.
28. In S.B. Patwardhan Vs. State of Maharashtra, AIR 1977 SC 2051, the Apex Court held that the period of continuous officiation in Government Service, after appointment of an employee by following the Rules applicable for substantive appointment has to be taken into account for determining his seniority, and seniority cannot be determined on the sole test of confirmation, as confirmation is one of the inglorious uncertainties of Government services depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16 of the Constitution. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the available eligible candidates and without following the Rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal, which would violate the equality clause. If the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the Rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority.
29. Same view has been reiterated in Baleshwar Dass and others Vs. State of U.P. and others, AIR 1981 SC 41; and Delhi Water Supply and Sewage Disposal Committee and others Vs. R.K. Kashyap, AIR 1989 SC 278.
30. In Narendra Chadha Vs. Union of India and others, AIR 1986 SC 638, the Hon'ble Supreme Court examined the case of officers promoted without following any procedure prescribed under the Rules but had continuously worked for 15-20 years on the posts without being reverted. The Court directed for counting the said officiating period for seniority observing that any other view would be arbitrary and violative of the mandate of Articles 14 and 16 of the Constitution. The Court observed as under:-
". . . .But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed on that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years, with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results........where there is no dispute regarding the entry of the officers concerned into the same Grade."
31. It is evident from the above observation that in that case, the direct recruit had not raised any dispute regarding the entry of the promotees and the Government was enclothed by the relevant Service Rules to relax any of the service conditions and the promotees had worked for 15-20 years with due deliberations, though without consulting the Public Service Commission. The Court held that service conditions stood relaxed impliedly.
32. In The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others-AIR 1990 Supreme Court 1607, a Constitution Bench of the Supreme Court while considering whether the ad hoc service followed by regular service could be counted for the purposes of seniority, in paragraph 44, has postulated several propositions of law interalia as under:-
"(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 regularization of his service in accordance with the Rules, the period of officiating service will be counted."
33. The aforesaid propositions of law laid down by the Constitution Bench appear to be based on observation made in para 13 of the aforesaid decision which reads as under:
"13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan's case(AIR 1977 SC 2051) was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a Government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of Government services depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Arts. 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal, which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass Vs. State of U.P. ( 1981) 1 SCR 449 : (AIR 1981 SC 41), and Delhi Water Supply and Sewage Disposal Committee Vs. R.K. Kashyap, ( 1989) Supp 1 SC 194: ( AIR 1989 SC 278), with which we are in agreement. In Narender Chadha Vs. Union of India, (1986) 1 SCR 211:(AIR 1986 SC 638) the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following appointment made in accordance with the rules prescribed for regular substantive appointments in the service".
34. In Keshav Chandra Joshi and others Vs. Union of India and others, AIR 1991 SC 284, the Supreme Court explained the scope of proposition"A" & "B" in Direct Recruit Class II Engineers (supra) observing as under :-
" 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 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 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 till the date of regularization of the service in accordance with the Rules the period of officiating service has to be counted towards seniority. 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 Chadha's ratio together the true import of the proposition would not be appreciated."
35. In State of West Bengal and others Vs. Aghore Nath Dey and others, (1993) 3 SCC 371, the Apex Court elaborately explained the scope of the propositions (A) and (B) as set out in the aforementioned Direct Recruit Engineer's case, observing as under:-
"There can be no doubt that these two conclusions have to be read harmoniously and conclusion (B) cannot cover cases, which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to Rules'. The corollary set out in conclusion (A), then 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 posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases, where the initial appointment is only ad hoc and not according to Rules, being made only as a stop gap arrangement. The case of the writ petitions squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.......We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).
In our opinion, the conclusion (B) was added to cover a different kind of situation wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the Rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointments is not made by following the procedure laid down by the 'Rules' and the latter expression 'till the regularization of his service in accordance with the Rules'. We read conclusion (B) and it must be so read to reconcil with conclusion (A), to cover the cases, where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself and is made subject to the deficiency in the procedural requirements prescribed by the Rules for adjudging suitability of the appointee for the post being cured at the time of regularization, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the Rules. In such cases, the deficiency in the procedural requirements laid down by the Rules has to be cured at the first available opportunity, without any default of the employee and the appointee must continue in the post uninterruptedly till the regularization of his service, in accordance with the Rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the Rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements, of the Rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop gap arrangement and not according to Rules......"
36. The Supreme Court in the case of Masood Akhtar Khan Vs. State of M.P.(1990) 4 SCC 24; Anuradha Bodi (Dr.) Vs. Mincipal Corpn. of Delhi (1998) 5 SCC 293; Keshav Deo Vs. State of U.P., (1999) 1 SCC 280; I. Chandrakishore Singh Vs. State of Manipur (1999) 8 SCC 287; T. Vijayan and others Vs. Divisional Railway Manager and others, AIR 2000 SC 1766; State of Bihar Vs. Kameshwar Prasad Singh, AIR 2000 SC 2306 and Santosh Kumar and others Vs. G.R. Chawla and others, AIR 2003 SC 3304, after considering the Constitution Bench decision in Direct Recruit Engineer's case, held 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.
37. The Apex Court in A.K. Bhatnagar and others Vs. Union of India and others, (1991) 1 SCC 544; Indian Administrative Service (SCS) Association U.P. and others Vs. Union of India and others, 1993 Supp (1) SCC 730; and Prafulla Kumar Das and others Vs. State of Orissa and others (2003) 11 SCC 614, held that seniority is an incidence of service and when Rules prescribe the method of computation, it is squarely governed by such Rules. No one has vested right to promotion or Rules.
38. In Dr. M.A. Haque and others Vs. Union of India and others (1993) 2 SCC 213, the Supreme Court held that expression used by the Constitution Bench in Direct Recruit Engineer's case, means " the Rules of recruitment and not the special procedure laid down by the Court". Therefore, the Apex Court emphasized that a case, has to be examined giving paramount importance to the statutory Rules. If the appointments had been made without following the procedure prescribed under the statutory Rules, the question of reckoning the officiating period for determining the seniority will not arise.
39. In M. Amanullah Khan Vs. Government of India and others (2004) 7 SCC 546, the Hon'ble Apex Court placing reliance upon its earlier judgment in R.R.S. Chauhan Vs. Union of India, 1995 Supp. (3) SCC 109; and Syed Khalid Rizvi (supra) held that if the officiation in a cadre post is fortuitous in nature, the period of officiation cannot be taken into account for the purpose of fixing the seniority. And where an appointment is offered to a person as a stop gap arrangement for non-availability of a regularly selected person to man temporary vacancies in a cadre post in deviation of the Rules, though in compelling circumstances, the benefit of the officiating period cannot be claimed.
40. In Excise Commissioner, Karnataka and another Vs. V. Sreekanta- AIR 1993 Supreme Court 1564, while dealing with the question of regularization and seniority, in para 14 of the decision, the Apex Court held that seniority has to be counted from the date of regularisation and not from the date of ad hoc appointment.
41. The aforesaid decisions have been analyzed by Full Bench of this Court in Farhat Hussain Azad Vs. State of U.P. and others [(2005) 1 UPLBEC 474]. In para 41 of the said decision, this Court observed as under:
"41. - Thus, the law stands crystallised that a person appointed on adhoc basis on a post de hors the Rules or without following any procedure prescribed by law, cannot claim the benefit of reckoning the period of service rendered by him as such for the purpose of seniority or promotion. The case of an individual person claiming such a relief is to be examined in the light of the propositions 'A' and 'B' propounded by the Hon'ble Apex Court in Direct Recruit Engineers' case reading along with the explanation given in paragraph 13 of the said judgment, as also explained subsequently by the Hon'ble Apex Court time and again in Keshav Chandra Joshi and others ( supra) and Aghore Nath Dey and others (supra). The appointment should be made after considering the suitability of all eligible candidates in strict compliance of the statutory Rules. A minor deficiency in following the procedure prescribed under the Rules, may be ignored but, if the appointment is to be made in consultation with the Commission, such a deficiency cannot be ignored as the appointment itself would be de hors the Rules. Where the quota Rule could not be complied with for some compelling circumstances and appointments have been made with due deliberation and appointees continue for a very long period without any interruption, benefit of such a period is permissible, provided the statutory Rules applicable in the service confer the power upon the Government to relax the service conditions."
42. The ratio of aforesaid decisions is binding upon this court, therefore, I have no reason to take different view in the matter. Accordingly, law laid down herein before has to be applied in given facts and circumstances of the case stated herein after.
43. From a joint reading of Rule-4 to 10 of 1979 Rules as amended by Notification dated 7.8.1989, it is clear that any person who was directly appointed on ad hoc basis on or before 1st October, 1986 and continuing in service as such, on the date of commencement of U.P. Regularization of ad hoc appointments (on post outside the purview of the Public Service Commission) (Second Amendment) Rules, 1989 and possessed requisite qualification prescribed for regular appointment at the time of such ad hoc appointment and has completed or as case may be, after he has completed three years continuous service, shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. By virtue of Rule-6 of 1979 Rules the appointments made under said rules shall be deemed to be under relevant service rules or orders, if any. Rule-7 of 1979 Rules provides method for determination of seniority of persons appointed under said Rules which provides that any person appointed under said rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with said rules, therefore, the submission of learned counsel for the petitioners that the petitioners' seniority shall be counted from the date of their initial appointment on ad hoc basis or from the date of completion of three years continuous service on ad hoc basis, in my considered opinion, appears to be contrary to the aforesaid statutory provisions of law, as such, is wholly untenable and liable to be rejected. In my view, a person shall be treated to substantively appointed under relevant service only on the date of order of appointment after selection under 1979 Rules, i.e. on the date of order of regularisation passed in his case and not earlier to it.
44. It is to be noted that Rule-4 of 1979 Rules intended to regularise the ad hoc appointee, who was directly appointed on ad hoc basis on or before the cut of date mentioned in the said rule (i.e. 1st October, 1986) and was continuing as such till the date of commencement of Regularisation Rules (i.e. 7.8.1989) and possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment and has completed three years continuous service or as case may be, after he has completed three years continuous service, shall be considered for regular appointment in manner provided under said rules. In case, he is found fit for appointment by the selection committee on the basis of his record and suitability, he shall be appointed against permanent or temporary vacancy as may be available, but in case, he is not found suitable or his case is not covered by Rule-4(1) of 1979 Rules, his services are liable to be terminated forthwith. Therefore, in view of these statutory provisions of laws, it is very difficult to hold that an ad hoc appointee is entitled to be regularised merely on completion of three years continuous service, irrespective of date of his such appointment, in my view, to become entitled to be considered for regularisation an ad hoc appointee must satisfy the requirement of his initial appointment on or before the cut of date mentioned under rule and further he must have continued till the date of commencement of regularization Rules, besides satisfying other requirement of three years continuous ad hoc service and conditions like suitability as mentioned in the said rules. In case he fails to satisfy any of the said requirements, his services shall be terminated. Thus entitlement for consideration for regularisation cannot be equated with the event of regularisation for the reason that an ad hoc appointee who has been considered for regularisation can also be found unsuitable for such regularisation or whose case is not covered by Rule 4 (1) of 1979 Rules, therefore, submission of learned counsel for the petitioners that the petitioners were entitled for regularisation on completion of their three years continuous service on ad hoc basis and date of order of regularisation is mere formality, appears to be wholly erroneous and misconceived, therefore, can not be accepted. In my view, from close analysis of 1979 Rules, there is nothing to indicate that in case any delay is caused in considering the case of regularisation of the ad hoc appointee the appointee will either stand automatically regularised on completion of three years continuous service or after such regularisation, his regular appointment shall relate back to the date of his initial appointment or on the date of completion of three years service on ad hoc basis.
45. It is no doubt true that petitioners were initially appointed on ad hoc basis and continued as such till their regularisation but their cases are not covered by conclusion 'B' of Direct Recruit Engineers' Association case (supra) for the reason that they were appointed without considering the claims of all the eligible available persons in consonance with the provisions of Article-16 of the constitution and without following the rules of regular appointment. The conclusion 'B' of said case shall be understood in context of and should be read alongwith para-13 of the aforesaid decision, as also explained subsequently in Keshav Chandra Joshi's case (supra) and Aghore Nath Dey's case (supra). In para-13 of decision of Direct Engineer Association case (supra) the Apex Court held that "if the appointment is made by way of stop gap arrangement without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment can not be equated with the experience of a regular appointee because of the qualitative difference in the appointment. To equate two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointment, there is no reason to exclude the officiating service for the purpose of seniority".Therefore, aforesaid submission of learned counsel for the petitioner is not acceptable for the aforesaid reasons.
46. In view of the aforesaid discussion, there can be no scope for doubt to hold that petitioners of both the writ petitions, who were initially appointed on ad hoc basis, as stop gap arrangement, without following the procedure prescribed under 1947 Rules, which is relevant service rule for making recruitment and governing the service conditions of ministerial staff of sub-ordinate courts and without considering the claims of all eligible candidates for such appointment, are not entitled to count their entire period of service for the purpose of seniority. They shall be treated to be substantively appointed only on the dates of orders of appointment were passed by appointing authority under Rule-5 on recommendation of selection committee under Rule-4(6) of 1979 Rules in respect to them, their such appointment shall be treated to be under relevant service rules i.e. 1947 Rules by virtue of Rule-6 of 1979 Rules, thereupon they shall be treated to be members of service for determination of seniority. Thus, they shall be entitled to seniority only from the date of order of appointment after selection in accordance with 1979 Rules by virtue of Rule-7 of said rules. The services rendered by them on ad hoc basis earlier to it can not be counted for the purpose of their seniority. Their seniority shall be counted from the date of substantive appointment i.e. from the date of order of regularisation and not earlier to it as held by Apex Court and this Court in decisions referred earlier.
47. The submission of learned counsel for the petitioners that while passing the impugned order dated 13.7.2001 the District Judge has also failed to follow existing practice in the Judgeship under which even though an order of regularization passed on subsequent date the benefit of seniority has been given to identically circumstanced employee with effect from the date of their entitlement for regularization as done in the case of Rajendra Mohan Srivastava who was regularised on 5.2.1996 but was given benefit of regularization w. e. f. 6.5.1987 is wholly untenable and not acceptable at all. In view of law laid down by Apex Court and this Court stated herein before the said order passed by the District Judge Allahabad in case of Sri Rajendra Mohan Srivastava appears to be contrary to law. Therefore, the said order passed by the District Judge cannot be treated to be precedent for according benefit of regularization to the petitioners from back date i.e. from the date of their alleged entitlement for regularization.
48. In Chandigarh Administration Vs. Jagjit Singh AIR 1995 SC 705 Apex Court held that merely because the respondent authority has passed one illegal/unwarranted order it does not entitle the the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it cannot be made a basis for its repetition. By refusing to direct respondent authorities to repeat the illegality the court is not condoning the earlier illegal act or order nor can such illegal order constitute the basis for a legitimate complaint of discrimination giving effect to such pleas would be prejudicial to the interest of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.
49. Similar view has been taken by Apex Court in several subsequent decisions. By citing earlier such decisions. In State of Bihar Vs. Kameshwar Prasad Singh AIR 2000 SC 2306 in para 30 of the decision the Apex Court held that the concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. Pertinent observations made in para 30 of the decision by Apex Court by citing several earlier decisions are as under:-
"30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. NDMC, (1996) 2 SCC 459 : (1996 AIR SCW 749 : AIR 1996 SC 1175) held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed (Para 9):
" Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that this claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain, (1997) 1 SCC 35 this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
In State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 : (1997 AIR SCW 1574) this Court observed (Para 3):
" The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetuate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No" . In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."
50. Another submission of learned counsel for the petitioners that Rule 4 of 1979 Rules clearly provides that regularization of service of adhoc appointee is to take place before any regular appointment is being made in the Judgeship and this mandate of Rule 4 cannot be thwarted in around about manner by permitting large number of posts in District Judgeship to be filled up by way of transfer of employees from other Judgeships on their own requests is also without any substance for the reason that it is not the case of the petitioners that transfer of respondents by their own request was in any way impermissible under law. Learned counsel for the petitioners could not submit that Rule 4 of 1979 Rules creates any legal embargo upon the appointing authority to make any regular appointment against the vacancies which are not covered by ad hoc appointees till the regularization of ad hoc appointees is done by the competent authority in accordance with 1979 Rules. Therefore, the legal embargo for making regular appointment is confined only to the extent of posts covered by ad hoc appointees. It cannot be further extended to other available vacancies which cannot be covered by such ad hoc appointees and further it is not the case of the petitioners that for joining of transferees on the aforesaid dates the services of any adhoc appointee was terminated and such adhoc appointee could not be considered for regularization due to shortage of vacancy. Contrary to it, the transferred employees respondents no.2 to 19 have joined vacant posts in the Judgeship, which were not covered by ad hoc appointees and petitioners, who were adhoc employees, have also been regularised on 5.8.1993. Therefore, it cannot be said that on account of such transfer, the case of regularization of petitioners has been prejudiced. The provisions contained in Rule 4 (1) (iii) of 1979 Rules, in my opinion, is intended to safeguard the interest of adhoc employees who deserve to be considered for such regularization under the said Rules and unless the regularization of adhoc appointee is considered, the post occupied by them on adhoc basis cannot be filed up through regular appointment. Therefore, the submission of learned counsel for the petitioners in this regard is not acceptable and is liable to be rejected.
51. Now coming to the next question as to whether the order dated 13.7.2001 passed by District Judge, Allahabad while determining the seniority of petitioners of these writ petitions vis-a-vis respondents of writ petition no. 27299 of 2001 in given facts and circumstances of the case, is justified or not?
52. In this connection it is to be noted that admittedly the petitioners were initially appointed on adhoc basis from 1.10.1986 to 24.5.1989 on different dates and they have continuously worked as such till their regularization on 5.8.1993, on that date they have been regularised on the posts in question. The respondents no.2 to 19 of the writ petition were appointed as clerks in different Judgeships on regular basis other than Judgeship Allahabad and they were transferred and posted in District Judgeship Allahabad on different dates from 14.10.1992 to 21.5.1993. In the year 1999 proceeding was initiated to determine inter se seniority of petitioners viz-a-viz respondents no.2 to 19 of Writ Petition No.27299 of 2001 (Transferee employee). In the said proceeding a report was submitted by 3rd Additional District Judge, Allahabad on 27.7.1999 to the District Judge, Allahabad which was endorsed by the District Judge, Allahabad on 30.7.1999. A copy of the said report along with endorsement of District Judge is on record as Annexure-3 of the writ petition. By the order dated 30.7.1999 contained in Annexure-3 of the writ petition the District Judge Allahabad has declared the petitioners of Writ Petition No.27299 of 2001 who were initially appointed on ad hoc basis and regularised on 5.8.1993 senior to the respondents no.2 to 19 who have come to join District Judgeship Allahabad on transfer from 14.10.1992 to 21.5.1993 earlier to the regularisation of the petitioners. It transpires from the record that feeling aggrieved against the aforesaid order dated 30.7.1999 passed by the District Judge Allahabad the respondents no.2 to 19 have filed application for recalling the said order claiming themselves to be senior to the petitioners. Thereupon the District Judge Allahabad constituted a Three Members Committee of Judicial officers for considering the entire controversy. In pursuant thereof the aforesaid Committee submitted reports on 23.2.2001 and 28.5.2001. Thereupon the District Judge has passed impugned order dated 13.7.2001 holding that the respondents no.2 to 19 are senior to the petitioners and direction has been issued for modifying the seniority list accordingly. Feeling aggrieved by the said order of District Judge petitioners have filed aforesaid writ petition.
53. The thrust of submission of learned counsel for the petitioners is that once the District Judge, Allahabad had passed an order on 30.7.1999 declaring the petitioners to be senior to the respondents no.2 to 19, there was no occasion for the District Judge Allahabad to review his earlier order dated 30.7.1999 by impugned order dated 13.7.2001 without any such power of review. The submission of learned counsel for the petitioners appears to be attractive but in my opinion same is without any substance. From perusal of impugned order dated 13.7.2001 passed by the District Judge Allahabad contained in Annexure-8 of the Writ Petition No.27299 of 2001 it is clear that while passing the said order the District Judge has recorded categorical finding that the earlier order dated 30.7.1999 passed by the then District Judge was without hearing to the affected employees respondents no.2 to 19 (transferee employees from other Districts), therefore, the said order was ex parte and liable to be recalled. Accordingly, he has rightly recalled the order dated 30.7.1999 earlier passed by the then District Judge, Allahabad. Thereafter he has given opportunity of hearing to the affected persons and after going through the record and in view of law laid down by Apex Court from time to time has held that the petitioners cannot claim seniority prior to the date of their regularization before 5.8.1993 and since the respondents no.2 to 19 were regular employees of other Judgeships and have come to join Allahabad Judgeship by way of transfer from 14.10.1992 to 21.5.1993 prior to the date of regularization of petitioners who were admittedly regularised on 5.8.1993, therefore, the respondents no.2 to 19 were held senior to the petitioners. In my opinion, the view taken by the District Judge in the impugned order dated 13.7.2001 cannot be held to be faulty.
54. Even assuming for the sake of argument that District Judge had no power to review his earlier order dated 30.7.1999 and order dated 13.7.2001 passed by him is without jurisdiction, even then I am not inclined to interfere in the said order dated 13.7.2001 for the reason that the same is just and proper and in consonance of law laid down by Apex Court referred herein before, and earlier order of District Judge dated 30.7.1999 was contrary to law and has been set aside by the District Judge vide order dated 13.7.2001 and in case this order would be set aside by this Court, in that eventuality earlier illegal order of District Judge dated 30.7.1999 would be restored. The aforesaid view taken by me also finds support from the decision of Supreme Court rendered in Mohammad Swallah Vs. IIIrd Additional District Judge, Meerut AIR 1988 SC 94, which was also reiterated in M.C. Mehta Vs. Union of India AIR 1999 SC 2583, wherein Apex Court held that the Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party in violation of principles of natural justice or is otherwise not in accordance with law.
55. Now testing the case of Chandra Shekhar in writ petition no. 1245 of 1996 on touchstone of the principles laid down herein before, it is to be noted that he was initially appointed on the post of Copyist in District Judgeship Allahabad by order of District Judge dated 18.9.1986 alongwith 24 persons on ad hoc basis as revealed from Annexure-1 of the said writ petition. Out of those 25 persons serial nos. 1 to 14 were issued appointment letter on 18th September 1986 and rest of the candidates were remained in waiting list for such appointment. The name of petitioner finds place at serial no. 22 in the said list of 25 persons. According to the petitioner, he was permitted to join his duty on 4.11.1986. There is nothing to indicated that the aforesaid select list was prepared by considering the claims of all the eligible candidates for post in consonance with the provisions of Article 16 of the Constitution of India or by following the procedure prescribed under the rules of recruitment i.e. 1947 Rules. Thus, the aforesaid appointment was merely on ad hoc basis as stop gap arrangement. The services of petitioner were directed to be regularised vide order dated 22.5.1992 by Administrative Judge under the regularisation Rules of 1979 as amended from time to time and seniority was directed to be counted from 4.11.1986 i.e. from the date of initial appointment on ad hoc basis. The aforesaid order passed by Administrative Judge is on record as Anneuxre-2 of the said writ petition. In my opinion, the aforesaid order passed by Administrative Judge of Judgeship Allahabad with direction to count seniority of petitioner from the date of his initial appointment on ad hoc basis is not in consonance with the law laid down by Apex Court and this Court as stated herein before, therefore, can not be pressed into service.
56. From the perusal of order of regularisation dated 5th August, 1993 passed in case of petitioner alongwith 29 other ad hoc employees including the petitioners of writ petition no. 27299 of 2001, it appears that by said order the petitioners of both the petitions were regularised but their seniority was left to be decided in accordance with Rule-7 of Regularisation Rules 1979. Thereafter, it appears that the petitioner has filed above noted writ petition and as an interim measure, this court has directed to decide the representation of petitioner Sri Chandra Shekhar, which was decided by District Judge, Allahabad vide order dated 5.2.1996, contained in Annexure-2 of the amendment application whereby the representation of petitioner has been rejected holding that his seniority shall be counted from the date of order of regularisation i.e. 5.8.1993 and not from the date of his initial appointment on ad hoc basis. In my opinion, the view taken by District Judge, Allahabad vide order dated 5.2.1996 can not be held to be faulty. Accordingly, the writ petition no.1245 of 1996 is liable to be dismissed.
57. In view of aforesaid discussion both the writ petitions Writ Petition No.27299 of 2001 Ashok Kumar Pandey and others Vs. District Judge, Allahabad and others and Writ Petition No.1245 of 1996 Chandra Shekhar Vs. State of U.P. and others are hereby dismissed and interim order passed in Writ Petition No.27299 of 2001 stands automatically vacated. Since Writ Petition No.30912 of 2001 filed by Amar Bahadur Singh and others (transferee employees from different Judgeships) is against the order dated 10.8.2001 passed by the District Judge Allahabad on the basis of interim order dated 25.7.2001 passed in Writ Petition No.27299 of 2001 staying the effect and operation of order dated 13.7.2001 passed by the District Judge Allahabad, therefore, on vacation of interim order dated 25.7.2001 passed in Writ Petition No.27299 of 2011 the basis of order dated 10.8.2001 passed by the District Judge Allahabad challenged by Amar Bahadur Singh and others becomes non-existant. Accordingly, the order dated 10.8.2001 passed by the District Judge Allahabad is liable to be quashed. Accordingly, the same is hereby quashed and Writ Petition No.30912 of 2001 succeeds and is allowed.
58. The District Judge, Allahabad is directed to give effect to the order dated 13.7.2001 passed by the then District Judge Allahabad, whereby the controversy of seniority of ministerial staff of District Judgeship has been decided and promotions in higher pay scale and grade were effected and pass other consequential orders wherever necessary in view of observations made herein before.
Date:17.5.2012 LJ/-