S.K. SAHA AND ANR. ETC. versus PREM PRAKASH AGARWAL AND ORS. ETC.

Citation: [1993] SUPP. 3 S.C.R. 832 · Decided: 23-11-1993 · Supreme Court of India · Bench: J.S. VERMA

Judgment (excerpt)

A 
B 
S.K. SAHA AND ANR. ETC. 
v. 
PREM PRAKASH AGARWAL AND ORS. ETC. 
NOVEMBER 23, 1993 
[J.S. VERMA, R.M. SAHAI AND N.P. SINGH, JJ.] 
Civil Seniices-Appointment and senioriO--Candidate appointed on 
Contract basis-Extended from time to time-Post made gazetted-Selected 
by Seniice Commission and appointed with retrospective effect-Validity of 
C the retrospective appointment and seniori~Subsequ~ntly joining qovern-
ment Corporation-Deemed option for absorption-Later requesting appoint-
ment in Government service-Appointed accordingly-Period spent in 
Corporation-Whether could be counted for purposes of seniority. 
The appellant was appointed as Foremen in the Cycle Parts Factory 
D run by the State Government, for one year on contract basis. The appellant 
joined on 4.1.1957 and his contract of service was extended from time to 
time. In 1959, the post of Foreman which was a class-III post was declared 
as class-II Gaze~ted post. An advertisement was issued by the Service 
Commission inviting applications for the post of Foreman Class-II and 
E the appellant applied along with others. He was recommended by the 
Service Commission and by order dated 12.5.1960, the Government ap· 
pointed the appellant as Foreman Class-II with effect from 4.1.1957. 
When the State Government decided to transfer the management of 
the Cycle Parts Factory to a Government Corporation, aU the persons 
F working in the Factory were given option either to join the Corporation or 
to be absorbed in any other department of the State Government. Appel-
lant joined the service of the Corporation. Later, in 1972 he made a 
representation that he may be taken back in the service of the Government, 
and the Government by its order dated 19.6.1972 appointed him as Asstt. 
G Director of Industries. 
In a batch of Writ Petitions filed before the High Court, Respondent 
No. 1 challenged the appellant's appointment as Foreman Class-II with 
retrospective effect from 4.1.57, when the post was only a non-gazetted 
post, and as such Respondent No. 1 who was appointed on 18.2.1959 as 
H Asstt. Director of Industries, which post was equivalent to Foreman, would 
832 
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S.K. SAHA v. P.P. AGARWAL 
833 
rank senior to the appellant. Respondents 2-8, who were appointed as A 
Assistant Directors prior to the appellant, challenged the retrospective 
appointment and seniority given to the appellant. 
The High Court held that the State Government could not have 
appointed the appellant on 12.5.1960 w.e.f. 4.1.1957 from a date not only 
prior to the date of the recommendation made by the Commission but even 
prior to the date of the advertisement in respect of the said post, and that 
once the appointment of the appellant had been made by the process of 
direct recruitment, there was no occasion to reckon his seniority taking 
B 
into consideration the period during which he served the State on contract 
basis. It also held that since the appellant was appointed to the cadre of C 
Assistant Director of Industries w.e.f. 19.6.1972, after the appointment of 
respondents Nos. 2 to 8, he should rank junior to them as well. Hence these 
appeals. 
Dismissing the appeals, this Court 
HELD : 1.1 There cannot be any dispute that the appointment of tm; 
appellant, according to rules, was made on basis of the recommendation of 
the Service Commission, on 12.5.1960. As such there was no occasion to take 
into consideration the period when the appellant was continuing on ad hoc 
basis, especially, during the period when the post itself was a non-gazetted 
post. The appellant was given seniority w.e.f. 4.1.1957, but the post of the 
Foreman which the appellant was holding became a gazetted post since 
16.1.1959. Any officiation on the post when it was a non-gazetted post cannot 
be held to be a continuous officiation on the post so as to entitle the 
appellant to count that period towards his continuous officiation. The High 
Court has rightly held that while appointing him on the basis of the recom-
mendation of the Commission, the date of appointment could not have been 
ante-dated and made to be effective w.e.f. 4.1.1957. [838-B-D] 
D 
E 
F 
1.2 Respondent No. 1 had been appointed as Assistant Director of 
Industries on 18.2.1959 on the basis of an advertisement made in the year G 
1958 and on the recommendation of the Service Commission. Therefore, 
his seniority in the service could not have been affected by the State 
Government, by giving notional date of appointment 

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