LexSURAJ PARKASH GUPTA AND OTHERS versus STATE OF J & K AND OTHERS
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)T SURAJ PARKASH GUPTA AND OTHERS A • v. STATE OF J & K AND OTHERS APRIL 28, 2000 [M. JAGANNADHARAO AND A.P. MISRA. JJ.] B Service Law : J & K (Classification Control and Appeals) Rules 1956-Rules 5 & 23- J & K Engineering (Gazetted) Service Recruitment Rules, 1978-Rule 5(4)- c J & KPublicService Commission(Iimitation of functions) Regulations, 1957- Regulation 4( d)(ii)-Appointment-To the post of Assistant Engineers-On ad hoc promotion for a period more than six months without consulting Public Service Commission-Regularisation thereof-By relaxing recruitment rules- ~ And granting them, seniority within their quota as well as from the quota of direct recruits~Delayed recruitment of direct recruits-No evidence that suit- D able candi.dates were not available for direct recruitment-Held, The wholesale regularisation by way of implied relaxation of the recruitment rule to the g<JQ!tted category is invalid as it has been done without following the quota rule and without consulting the Service Commission-Power under rule 5 to relax ~ rules cannot be treated as wide enough to include a power to relax rule of E recruitment-The ad hodstop gap service of the promotees cannot be treated as non-est merely because P.S.C. was not consulted in respect of continuance of the ad hod stop gap service beyond six months-Such service is capable of being regularised under Rule 23, and rectified with retrospective effect from the date of occurrence of a clear vacancy in the promotion quota, subject to eligibility, fitness and other relevant factors-Service outside promotee quota F ·-t cannot count for seniority-1.n Service Jurisprudence, a direct recniit can claim seniority only from the date of his regular appointment-He cannot claim seniority from a date when he was not born in the service-Constitution of Jammu and Kashmir-Section 133. The present appeals raise the question whether the Government has G power to appoint officers on promotion temporarily for a period of more than six months without consulting Public Service Commission, to regular- ise them and to grant them seniority within as well as outside their quota. - The recruitment to the posts of Assistant Engineers of all the wings viz. Mechanical, Electrical and Civil Engineering ill the State of Jainmu & H 807 808 SUPREME COURT REPORTS (2000] 3 S.C.R. A Kashmir, as per rules was that 20 % posts were to be filled by direct recruitment, 60% by promotion of Junior Engineers and 20% by promo- tion of diploma holders. The last direct recruitment in the wing was done in 1984. In 1987 in order to remove stagnation, Government reorganised the service vide its B orders dated 29.6.87 and 29.10.87. Thereafter vide several orders, officers at various level were promoted to the next higher post on ad-hoc basis for six months. Later Government issued orders continuing these ad-hoc ap- \ / ~· pointmenl'i till regularisation without consultation with Public Service ): Commission. C On 23.11.87 Government referred the matter of direct recruitment in respect of 10 % quota, to the State Public Service Commission. The advertisement was issued on 3.12.87. The direct recruits applied, but were interviewed only in 1992-93, and they were appointed on various dates in 1994 and thereafter, only after the intervention of High Court. D Government issued seniority list. Direst recruits filed various writ petitions challenging the ad-hoc promotion of Assistant Engineers made by Government without consulting the Public Service Commission beyond six months and seeking to quash the existing seniority list contending that the · seniority list cannot show the ad-hoc promotees as seniors to direct re- E cruits. On the other hand promotee officers filed writ petitions alleging that the seniority list was favourable to direct recruits. ~- F G H During pendency of the writ petitions, Cabinet on 19.12.97 decided that in view of Court litigation there used to be delay in finalising seniority lists and the reference of the promotees' cases to the P.S.C./D.P.C. would take fairly long time to be completed. This view was supported by Law Departments and it was decided that the only remedy was to regularise their promotion in relaxation of rules from the date they were promoted on ad-hoc basis against substantive vacancies without prejudice to seniority to be fixed in accordance with rota and quota. The Government on 2.1;98, pursuant to t
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