R.K. MOBISANA SINGH versus KH. TEMBA SINGH & ORS.

Citation: [2007] 13 S.C.R. 434 · Decided: 12-12-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
R.K. MOBISANA SINGH 
v. 
KH. TEMBA SINGH & ORS. 
DECEMBER 12, 2007 
B 
•, 
[S.B SINHA AND HARJIT SINGH BEDI, JJ.) 
Service Law-Seniority-Inter se seniority, direct recruits vis a 
vis promotees'-Ad hoc promotions granted to employees against 
c vacancies in promotee quota-Regularization with retrospective 
effect-Grant of-Held: When promotion is given only in exigency of 
situation without following the Rules, period cannot be counted 
towards seniority-Retrospective regularization could be granted only 
when such Rule exists-Retrospective regularization though could 
D confer other service benefits but cannot be of any help for reckoning 
seniority with retrospective effect-On facts, State being a competent 
y 
authority to determine inter se seniority of parties in view of the 
principles enunciated by this Court. 
E 
The question which arose for consideration in these appeals was 
whether the ad hoc promotions granted to the employees from the post 
of Section Officer (Grade-n to the post of Assistant Engineer in the 
Public Works Department of the State Government against vacancies 
in promotee quota, could have been directed to be regularized with 
F retrospective effect so as to effect the inter se seniority between the 
direct recruits and the promotees. 
Appellants and the other promotee respondents inter alia 
contended that they having been promoted against vacancies arising 
G in the year 1985 in the promotee quota and their services having been 
regularized with retrospective effect and not by way of stop gap 
employment, their seniority should be considered; that the recruitment 
rules did not contain any prohibition on grant ofregularisation with 
,j 
retrospective effect and the same being permissible, the promotees were 
H 
434 
y 
l-
R.K. MOBISANA SINGH v. KH. TEMBA SINGH 
435 
entitled to seniority with effect from the date from which their services A 
were regularized with retrospective effect; and that the Single Judge of 
High Court, having directed examination of the matter by a fact finding 
body upon proper application of mind and determination of seniority 
having regard to the decisions of this court is to be affirmed. 
Direct recruits contended that the promotees were not entitled to B 
seniority from the date of their ad hoc promotion· since the ad hoc 
promotions were found to have been made in violation of the 
Recruitment Rules; that the procedure prescribed for grant of regular 
promotion had not been followed; that some of the promotees did not C 
fulfil the requisite eligibility criteria prescribed by the rules; that the 
orders passed by the High Court directing regularisation with 
retrospective effect did not confer on them any consequential seniority; 
that some judgment of the High Court giving consequential seniority 
were reviewed in favour of the direct recruits; thatthere is no Rule which D 
enables the Government to give seniority with retrospective effect to 
the promotees; and that the consequent orders of the Government 
regularizing the services specifically stated that the seniority shall be 
determined later was not challenged by the promotees. 
Disposing of the appeals, the Court 
E 
HELD: 1.1. There did not exist any Rule for determination of inter 
se seniority. They were governed by some office memorandums. An 
Office Memorandum was issued on 22.12.1959 providing for general 
principles for determination of seniority in the general services. Although F 
in terms of the office memorandum, no retrospective effect could be 
given to the order of regularisation passed in favour of the promotees, 
as in absence of any seniority Rules operating in the field, the State 
was required to evolve a policy. It for its own reason did not do so. 
(Paras 27 and 37) (455-H; 456-A; 463-D-E] G 
1.2. The office memorandum of 1959 was applicable in a case of 
this nature. In some of the cases, promotion might have been given 
without following the Rules. When promotion is given only in the 
exigency of situation without following the Rules, the period cannot be 
counted towards seniority. [Para 38) (463-F] 
H 
436 SUPREME COURT REPORTS 
[2007] 13 (~ddl.) S.C.R. 
A 
1.3.' If they had been given regularisation with retrospective effect, 
the same by itself may not be a ground to apply the said order ipso facto 
for determining the inter se seniority. Seniority although is not a 
. fundamental right but a civil right. Such a right of the direct recruits could 
not have been taken awa

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