LexC.K. ANTONY versus B. MURALEEDHARAN AND ORS.
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A B C.K. ANTONY v. B. MURALEEDHARAN AND ORS. SEPTEMBER 1, 1998 (S. SAGHIR AHMAD, K. VENKATASWAMI AND S. RAJENDRA BABU, JJ.] S e1Vice Law : C Kera/a Forest Se1vice Special Rule~; 1966: Rules 2(a) and 8. D Se11i01ity-Assistant Conse1vator of Forests--Promotees and Direct recmits-lnter-se detemzination of-Stopgap appointment-Rangers were ap- pointed as Assistant Conse1vator of Forests temp01wily as a stopgap anw1- gement-Howeve1; their appointments were regularised before appointment of direct recmits who were then undergoing training-Held : Such appointment did not entitle seniority to the Rangers in the State Forest Se1vice--Hence, the said Rangers could no( claim seni01ity over tile direct recmits even though they were appointed earlier than the di1:ect recmits-Direct recmits who were undergoing training were available for appointment anc~ the ref ore, appoint- E ment by transfer is not pe1111issible--Kerala State Subordinate Se1vice Rules 1958, Rr. 2, 20, 24, 27 and 31-Kerala Ser\Jice Rule.1-R. 18. Senio1ity-Promotees and Direct recruit~-Inter-se determination of-Promotion in excess of quota-Held, cannot prejudice rights of direct F recmits. G Appointment-Nature of-Held, person appointed to a se1vice or post tempormily or provisionally as a stopgap mrangement cannot be considered as one who has been appointed to that se1vice or post. The appellants who were Rangers of Kerala Forest Subordinate Service were promoted as Assistant Conservators of Forests before 1.5.1978. The services of Assistant Conservators Forests were governed under Kerala Forest Service. The appellants filed a writ petition before the High Court claiming that the appellants should be treated as senior to the H direct recruits- respondents who were appointed as Assistant Conser- 280 • -· C.K. ANTONY v. B. MURALEEDHARAN 281 vators of Forests on or after 1.5.1978. A The High Court dismissed the petition on the grounds that the appellants' initial appointment was by way of temporary stopgap arrange- ment, that in a sample appointment order in respect of one of the appel- lants it was clearly mentioned that the promotion was provisional under Rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958; and B that the appellants while officiating as Assistant Conservators of Forests were given promotion as Senior Grade Rangers w.e.f. 1.7.1978. Hence this appeal. On behalf of the appellants it was contended that the appellants were appointed long prior to the appointments of the respondents and, there- fore, the appellants must be given seniority over and above the respon- dents; 'and that though the appointments of the appellants were temporary, the Government had regularised those appointments prior to the appoint- ments of the respondents and, therefore, they were entitled to claim seniority over the respondents. Dismissing the appeals, this Court HELD : 1.1. It emerges from the Kerala Forest Service Special Rules, the Kerala State and Subordinate ~ervice Rule, 1958 and the Kerala Service Rules that a person who has been appointed to a service or post temporarily or provisionally as a stopgap arrangement, can never be considered as one, who has been appointed to that post or service. If there c D E is no sub.stantive vacancy in the permanent cadre available, no direct recruitment can be resorted to. The direct recruits should get substantive vacancies in the permanent cadre, while recruits by transfer can be ad- F justed against a permanent vacancy or a temporary vacancy depending upon the vacancy position. A person, who gets a temporary appointment or promotion, as the case may be, shall not be regarded as a probationer in that category and on account of the temporary appointment or promo- tion, he cannot have any preferential claim to that post. Any commence- ment of probation for the purpose of counting seniority must precede by G an appointment in accordance with the rules. In case a temporary appoin- tee is allowed to start his probation from a date anterior to the date of his subsequent appointment in accordance with the rules, that should be .without prejudice to the seniority of others in the service, in 'this case, without prejudice to the seniority of direct recruits. [290-A-D] H 282 SUPREME COURT REPORTS [1998) SUPP.1 S.C.R. A 1.2. It is true that the appellants were appointed earlier in point of time to the appointments of the direct recruits. But they were
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