STATE OF RAJASTHAN AND ORS. v. JAGDISH NARAIN CHATURVEDI

Citation: [2009] 8 S.C.R. 1011

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, A.K. GANGULY

Case summary

STATE OF RAJASTHAN AND ORS. v. JAGDISH NARAIN CHATURVEDI.pdf

Judgment text

[2009] 8 S. C. R. 1011 j STATE OF RAJASTHAN AND ORS. - v. JAGDISH NARAIN CHATURVEDI (Civil Appeal No. 3620 of 2009) MAY 8, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR " ~ GANGULY, JJ. ] SERVICE LAW: RAJASTHAN SUBORD/NATE OFFICES MINISTER/AL STAFF RULES, 1957: RAJAS THAN ENGINEERING SUBORDINATE ~ SEF? VICE (IRRIGATION BRANCH) RULES, 1967: 4 WORK CHARGED EMPLOYEES SERVICES RULES, 1964: RAJAS THAN AGRICULTURAL SUBORDINATE SEF? VICE RULES, 1978: RAJAS THAN FOREST SUB ORD/NA TE SERVICE 1 RULES, 1963: RAJAS THAN PANCHAYAT SAMIT/ AND ZILA PAl"::?. ISHAD SERVICE RULES, 1959: ,.

RAJASTHAN SECRETARIAT MINISTERIAL SERVICE ~ RULES, 1970: Adhoc appointment or appointment on daily wage or work charge basis - Whether appointments made to the cadre/ ~·> -+ senlice in accordance with the provisions contained in the recruitment rules contemplated by the relevant Government ordi"3rs - Held: Adhoc appointment is always to a post but not to the cadre/service and also not made in accordance with the provisions contained in the recruitment rules for regular " appointment - Rajasthan Absorption of Surplus Personnel ~ Rules, 1969, Sections 3(a), 25(4), Ministerial Service Rules, Rules, 23, 27 and 28- Constitution of India, Articles 136, 141. In these appeals, the basic i~sue that arose for 8 consideration of the court wai:; whether adhoc appointment or appointments on daily wage or work charge basis are appointments made to the cadre/service in accordance with the provisions contained in the recruitment rules contemplated by the Government orders dated 25. 1. 1992 and 17. 2.

1998. Allowing the Transfer Petitions and the Civil Appeals . ' and disposing of Civil Appeal No. 3743 of 2009, the Court HELD: 1. If initially the appointment was a 0 substantive appointment, the respondents-writ petitioners could have challenged when the order of regularization was passed. There was no challenge to the order of regularization and benefits therefrom and there was no challenge to the order of regularization in any of the cases. If the plea of the respondents-writ petitioners is accepted it would mean that in their cases the regularization was done long back. There was no challenge at the relevant point of time. Therefore, the belated approach only for the sake of getting advantage of ad hoc or work charge service cannot be countenanced.

The present stand that the initial appointment was substantive appointment is contrary to the factual position because in each case the proficiency test was undertaken and the appointment letter shows that the appointment was till selected candidates join. [Para 15] [1033-G-H; 1034-A-C] State of Haryana v. Haryana Veterinary & AHTS Association and Anr. (2000 (8) SCC 4; Dr. Chanchal Goyal (Mrs. ) v. State of Rajasthan 2003 (3) SCC 485; Santosh Kumar and Ors. v. G. R. Chawla and others 2003 (10) sec -~ 513; A. G. Sainath Reddy v. Govt. ofA. P. &Ors. 2003 (4) SCC 625; Indian Council of Agricultural Research & Anr. v. T. K. - - Swyanarayan & Ors. 1997 (6) SCC 766; Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. 1996 (2) SCC 459; Chandigarh Administration and Anr. V. Jagjit Singh and Anr. 1995 (1) sec 745 and Ram Ganesh Tripathi and Ors. V. State of U. P. and Ors. 1997 (1) sec 621, referred -1 to. ' 2.

Even if the proficiency test is passed the question o1f eligibility is of relevance, "when the vacancy occurs". So far as daily wage services are concerned there is no scale of pay and the lowest figure scale of pay has to be given. According to fundamental Rule 9(4), 'cadre' means the strength of a service or part of service sanctioned as ... • a separate unit. [Para 16] [1034-C-D] Chakradhar Paswan v. State of Bihar 1988 (2) SCC 214, I ti!! lied on. 3. In order to become "a member of service" candidate must satisfy four conditions, namely {i) the appointment must be in a substantive capacity; (ii) to a post in the service i. e. in a substantive vacancy; (iii) made 4 according to rules; (iv) within the quota prescribed for the s;ource. [Para 17) [1034-E-F] 4. Ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment. [Para 18] [1034-F-G] 5.

Although the adjective 'regular' was not used -t before the words 'appointment in the existin_g cadre/ • :service' in para 3 of the G. O. dated 25. 1. 1992 which provided for selection pay scale the appointment mentioned there is obviously a nee~ for regular ' appointment made in accordance with the Recruitment Rules. What was implicit in the said paragraph of the G. O when it refers to appointment tp a cadre/service has been made explicit by the clarification dated 3. 4. 1993 given in respect of point No. 2. The same has been incorporated in para 3 of the G. O. dated 17. 2. 1998. [Para 19] [1034-G- H; 135-A-BJ 6. The High Court failed to appreciate that the Recruitment Rules made a distinction between appointments made to the cadre/service in accordance with the relevant Recruitment Rules which are regular and appointments made de hors the regular Recruitment Rules which are ad hoc. [Para 21) [1041-A] 7.

So far as the dismissal of some special leave petitions summarily it is made clear that, it does not affc;tct ... the jurisdiction of the Supreme Court to grant special . leave to appeal and allow the same. It is well settled that a decision which is per incuriam is not 'law' declared in terms of Article 141 to have a binding effect. [Para 22) (1041-B-C) Prabhakar Rao v. State of A. P. 1985 Supp 2 SCR 537; State of Maharashtra v. Digambar 1995 (4) SCC 683; Union of India v. K. N. Sivadas 1997 (7) SCC 30; State of U. P. v. Synthetics and Chemicals Ltd. 1991 (4) SCC 139 and Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court 1990 (3) SCC 682, relied on. 8. While reckoning the required length of service the period of ad hoc service has to be excluded. It is relevant to note that the first selection scale of pay was excluded several years back on completion of 9 years of service subsequent to regularization. After long lapse of time i. e.

after nearly 8 years it was not open to be canvassed that the second selection scale of pay ought to be granted after the concerned employees having put in 18 years of . SiATE OF RAJASTHAN AND ORS. v. JAGDISH 1015 service from the date of ad hoc appointment. [Para 23) 1- (1041-E-FJ State of Punjab v. lshar Singh 2002 (10) SCC 674 and Sfaf19 of Punjab v. Gurdeep Kumar 2003. (11) SCC 732, relied on. 9. In Civil Appeal No. 3743 of 2009, the test was held in the year 1981. The regularization was in 1982 and first .. 4 selection grade was given in 1991 and the second was givem in 2000. That being so, the respondent is entitled tt> the behefit which the Government has not granted. The State is directed to consider this question immediately. [Para 25] [1042-A-B] Case Law Reference: 2000 (8) sec 4 referred to Par~ 3 2003 (3) sec 485 referred to Para 12 2003 (10) sec 513 referred to Para 12 2003 (4) sec.

625 referred to Para 12 1997 (6) sec 766 referred to Para 13 1· 1996 (2) sec 459 referred to Para 13 1995 (1) sec 745 referred to Para 13 1997 (1) sec 621 referred to Para 14 1988 (2) sec 214 relied on Para 16 1985 Supp 2 SCR 537 relied on Para 22 . , ' .. 1995 (4) sec 683 relied on Para 22 1997 (7) sec 30 relied on Para 22 ·A 1991 (4) sec 139 relied on Para 22 1990 (3) sec 682 relied on Para 22 2002 (10) sec 674 relied on Para 23 2003 (11) sec 132 relied on Para 23 WITH ,_ ' Civil Appeal No. 3621/2009 Civil Appeal No. 3622/2009 Civil Appeal No. 3624-25/2009 Civil Appeal No. 3626/2009 j Civil Appeal No. 3627/2009 Civil Appeal No. 3628/2009 Civil Appeal No. 3629/2009 Civil Appeal No. 3630/2009 Civil Appeal No. 3631/2009 -f Civil Appeal No. 3632/2009 • Civil Appeal No. 3633/2009 Civil Appeal No. 3635/2009 Civil Appeal No. 3636/2009 .. 1' Civil Appeal No. 3637/2009 NARAIN CHATURVEDI • Civil Appeal No. 3639/2009 Civil Appeal No. 3640/2009 Civil ~\ppeal No. 3641/2009 Civil Appeal No.

3642/2009 ~ " . Civil Appeal No. 3643/2009 Civil Appeal No. 3644/2009 . Civil Appeal No. 3645/2009 Civil Appeal No. 3646/2009 Civil Appeal No. 3647/2009 ~ Civil Appeal No. 3648/2009 Civil Appeal No. 3649/2009 Civil Appeal No. 3650/2009 Civil Appeal No. 3651/2009 . ~ Civil Appeal No. 3652/2009 Civil Appeal No. 3653/2009 Civil Appeal No. 3654/2009 Civil Appeal No. 3655/2009 Civil Appeal No. 3656/2009 G. • . ~ Civil Appeal No. 3657/2009 pvil Appeal No. 3660/2009 Civil Appeal No. 3661/2009 Civil Appeal No. 3662/2009 Civil Appeal No. 3663/2009 Civil Appeal No. 3664/2009 Civil Appeal No. 3665/2009 , Civil Appeal No. 3666/2009 ' Civil Appeal No. 3667/2009 Civil Appeal No. 3668/2009 Civil Appeal No. 3669/2009 Civil Appeal No. 3670/2009 Civil Appeal No. 3682/2009 Civil Appeal No. 3683/2009 Civil Appeal No. 3684/2009 Civil Appeal No. 3685/2009 Civil Appeal No. 3686/2009 Civil Appeal No. 3687/2009 Civil Appeal No. 3688/2009 Civil Appeal No. 3689/2009 Civil Appeal No. 3690/2009 • Civil Appeal No.

3694/2009 Civi! I Appeal No. 3696/2009 . Civi. I Appeal No. 3697/2009 Civil Appeal No. 3698/2009 Civil Appeal No. 3700/2009 4 ~ Civill Appeal No. 3701/2009 Civil Appeal No. 3703/2009 Civil Appeal No. 3704/2009 Civil Appeal No. 3706/2009 .. CivE Appeal No. 3707/2009 . Civi~ Appeal No. 3708/2009 Civil Appeal No. 3710/2009 Civil Appeal No. 3712/2009 CivH Appeal No. 3713/2009 Civil Appeal No. 3715/2009 Civil Appeal No. 3716/2009 Civil Appeal No. 3717/2009 Civil Appeal No. 3718/2009 Civil Appeal No. 3719/2009 ..... ... Civil Appeal No. 3722/2009 Civil Appeal No. 3723/2009 Civil Appeal No. 3724/2009 Civil Appeal No. 3725/2009 Civil Appeal No. 3726/2009 )' " Civil Appeal No. 3727/2009 Civil Appeal No. 3728/2009 Civil Appeal No. 3729/2009 Civil Appeal No. 3730/2009 i Civil Appeal No. 3731/2009 Civil Appeal No. 3732/2009 Civil Appeal No. 3733/2009 Civil Appeal No. 3734/2009 Civil Appeal No. 3735/2009 Civil Appeal No. 373612009 Civil Appeal No. 3737/2009 Civil Appeal No.

3738/2009 Civil Appeal No. 3739/2009 Civil Appeal No. 3740/2009 \I- .. Civil Appeal No. 3741/2009 I i Civil Appeal No. 3743/2009 Civil Appeal No. 3744/2009 Civil Appeal No. 3745/2009 Civil Appeal No. 3747/2009 ~ Civil Appeal No. 3748/2009 - Civil Appeal No. 3749/2009 Civil Appeal No. 3750/2009 Civil Appeal No. 3751/2009 "' Civil Appeal No. 3752/2009 Civil Appeal No. 3753/2009 Civil Appeal No. 3754/2009 Civil Appeal No. 3757/2009 Civil Appeal No. 3758/2009 Civil Appeal No.. 3759/2009 • Civil Appeal No. 3760/2009 Civil Appeal No. 3761/2009 Civil Appeal No. 3762/2009 Civil Appeal No. 3763/2009 1 Civil Appeal No.. 3764/2009 ... _, . , Civil Appeal No. 3767/2009 Civil Appeal No. 3768/2009 Civil Appeal No. 3769/2009 Civil Appeal No. 3770/2009 Civil Appeal No. 3771/2009 r ---- Civil Appeal No. 3772/2009 Civil Appeal No. 3773/2009 Civil Appeal No. 3774/2009 - Civil Appeal No. 3775/2009 . ~ Civil Appeal No. 3776/2009 Civil Appeal No. 3777/2009 T. P. (C) No. 198/2006 T. P. (C) No. 195/2006 T. P.

(C) No. 200/2006 T. P. (C) No. 196/2006 Civil Appeal No. 3778/2009 Civil Appeal No. 3779/2009 Civil Appeal No. 3780/2009 Civil Appeal No. 3781/2009 .. -- .. Civil Appeal No. 3784/2009 Civil Appeal No. 3785/2009 Civil Appeal No. 3786/2009 Civil Appeal No. 3787/2009 . , Civil Appeal No. 3788/2009 ~ Civil Appeal No. 3789/2009 Civil Appeal No. 3790/2009 Civil Appeal No. 3791/2009 .. Civil Appeal No. 3792/2009 Civil Appeal No. 3793/2009 Civil Appeal No. 3794/2009 Civil Appeal No. 3795/2009 Civil Appeal No. 3796/2009 T. P. (C) No. 64/2006 '- Civil Appeal No. 3797/2009 Civil Appeal No. 3798/2009 Civil Appeal No. 3799/2009 Civil Appeal No. 3800/2009 Civil Appeal No. 3801/2009 G. ,. ... Civil Appeal No. 3802/2009 Civil Appeal No. 3804/2009 ... Civil Appeal No. 3805/2009 Civil Appeal No. 3806/2009 8 Civil Appeal No. 3807/2009 Civil Appeal No. 3808/2009 r • Civil Appeal No. 3809/2009 Civil Appeal No. 3810/2009 Civil Appeal No. 3811/2009 .. Civil Appeal No. 3812/2009 Civil Appeal No.

3813/2009 Civil Appeal No. 3814/2009 Civil Appeal No. 3815/2009 Civil Appeal No. 3816/2009 Civil Appeal No. 3817/2009 Civil Appeal No. 3818/2009 Civil Appeal No. 3819/2009 Civil Appeal No. 3820/2009 Civil Appeal No. 3821/2009 Civil Appeal No. 3827/2009 r ... Civil Appeal No. 383112009 IH Civil Appeal No. 3834/2009 ). Civil Appeal No. 3835/2009 Civil Appeal No. 3836/2009 Civil Appeal No. 3837/2009 Civil Appeal No. 3838/2009 • " Civil Appeal No. 3839/2009 Civil Appeal No. 3840/2009 Civil Appeal No. 3841/2009 Civil Appeal No. 3842/2009 Civil Appeal No. 3843/2009 - Civil Appeal No. 3844/2009 Civil Appeal No. 3845/2009 Civil Appeal No. 3846/2009 Civil Appeal No. 3847/2009 Civil Appeal No. 3848/2009 Civil Appeal No. 3849/2009 Civil Appeal No. 3856/2009 Civil Appeal No. 3850/2009 Civil Appeal No. 3851/2009 ... -. Civil Appeal No. 3852/2009 , ervice and further the number of persons to be entitled ~o service" with "continuous service".

In our considered opinion under the terms and conditions of the circulars dated 2-6-1989 and 16-5-1990, the respondent Rakesh Kumar would be entitled for being considered to have the selection grade on completion of 12 years from 29-1-1982 on which date he was duly appointed against a temporary post of Assistant Engineer on being selected by the Public SeNice Commission and not from any earlier point of time. The conclusion of the majority judgment in favour of Rakesh Kumar, therefore, cannot be sustained. 8 )()()( xxx xxx 9. Under the Recruitment Rules which had been made in Ir .. exercise of powers conferred by the proviso to Article 309 of the Constitution "member of seNice" means an officer appointed substantively to a cadre post and includes in case of a direct appointment an officer on probation or an officer who having successfully completed his probation awaits appointment to a cadre post.

In case of an appointment by transfer an officer who is on probation or who having successfully completed the probation awaits appointment to a cadre post. 10. Under Rule 6 of the Recruitment Rules, recruitment to the seNice in the cadre post could be made both by way of direct appointment as well as by promotion in the proportion from different sources mentioned in the said Rule. Sub-rule (3) of Rule 6 authorises appointment to a cadre post as stopgap arrangement from sources other than the allotted source when a candidate from the allotted source is not available from sources 1 and 3, but such appointee is liable to be reverted to his original cadre when a candidate from the allotted source is available and the period of seNice rendered by such person shall not be reckoned for the purpose of his seniority. 11.

Sub-rule (4) of the Rule thus enables the State Government to fill up a short-term vacancy in the exigencies of public seNice after recording reasons for a period not exceeding six months in each case, without resorting to the select list prepared under Rule 9. NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J. ] . ~ 12. Under Rule 8 appointment to the service has to be made by way of direct recruitment strictly in the order of merit indicated by the Public Service Commission depending upon the number of vacancies available in the cadre. " 14. In that case also, sub-Rule 3 of Rule 6 and sub-rule (4) of Rule 6 are of relevance. The High Court was clearly wrong ... > in saying that the appointment was made de hors the Rules. In Ram Ganesh Tripathi and Ors. V. State of U. P. and Ors. (1997 (1) sec 621 at para 7) it was stated as follows: "7. Rule 21-A provides for regularisation of service of ad .... ,... ,,.

hoc employees by treating them as persons appointed in the service on the date of their regularisation. Rule 9 provides that a person appointed under that rule shall be entitled to seniority only from the date of appointment after selection in accordance with the said Rules and shall, in all cases, be placed below the employees appointed in accordance with the procedure for direct recruitment prior to the appointment of such persons under those Rules. In view of these statutory Rules, the Government could not have treated the respondents and other ad hoc employees whose services were regularised on 17-5-1985 as persons regularly appointed from an earlier date. Nor could the Government have counted seniority from an earlier date either for promotion to the higher post or for the purpose of giving selection grade. " 15. There is another hurdle on the way of the writ petitioners.

When the order of regularization was passed, accmding to learned counsel for the writ petitionersrespondents the initial appointment was a substantive , ~ ·appointment. If that was the position, there was need to take the proficiency test which undisputedly all the respondents have taken. If initially the appointment was a substantive appointment, the n:ispondents-writ petitioners could have challenged when the 1034 SUPREME COURT REPOR-1 S (2009) 8 S. C. R. order of regularization was passed. There was no challenge to the order of regularization and benefits therefrom and there was no challenge to the order of regularization in any of the cases. If the plea of the respondents-writ petitioners is accepted it would mean that in their cases the regularization was done long back. There was no challenge at the relevant point of time. Therefore, the belated approach only for the sake of getting advantage of ad hoc or work charge service cannot be • countenanced.

The present stand that the initial appointment was substantive appointment is contrary to the factual position because in each case the proficiency test was undertaken and the appointment letter shows that the appointment was till selected candidates join. 16. Additionally, even if the proficiency test is passed the question of eligibility is of relevance, "when the vacancy occurs". So far as daily wage services are concerned there is no scale of pay and the lowest figure scale of pay has to be given. According to fundamental Rule 9(4), 'cadre' means the strength of a service or part of service sanctioned as a separate unit. , (See Chakradhar Paswan v. State of Bihar (1988 (2) SCC 214). 17. In order to become "a member of service" candidate must satisfy four conditions, namely (i) the appointment must be in a substantive capacity; (ii) to a post in the service i. e. in a substantive vacancy; (iii) made according to rules: (iv) within the quota prescribed for the source. 18.

Ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointmept. 19. Although the adjective 'regular' was not used before the words 'appointment in the existing cadre/service' in para 3 of the G. O. dated 25. 1. 1992 which provided for selection pay scale the appointment mentioned there is obviously a need for regular appointment made in accordance with the Recruitment Rules. What was implicit in the said paragraph of the G. O when it mfers to appointment to a cadre/service has been made explicit by the clarification dated 3. 4. 199~ given in respect of point No. 2. The same has been incorporated in para 3 of the G. O. dated 17. 2. 1998. 20. Rules 23, 27 and 28 of Ministerial Service Rules read as under: "23. Appointment to the Service.

-, (1) Subject to the provisions of rules 6, 6A, 68 and 6C, except in respect of the posts of Stenographers the Appointing Authority shall appoint candidates who stand highest in the order of merit in the list prepared under rule 22, provided that he is satisfied after such enquiry as may be considered necessary that such candidates are suitable in all other respects for such appointment: Provided that subject to the provisions of rule 6, the Appointing Authority shall appoint candidates to the post of Stenographers from the list prepared under sub-rule (2- A) of rule 22 provided that he is satisfied after such enquiry as may be considered necessary that such candidates are suitable in all other respects for such appointment. (2) Notwithstanding anything contained in rule 7 the persons appointed temporarily as Lower Division Clerk up to 7. 11. 75.

who have been continuously holding such posts or higher posts shall be deemed to have been appointed regularly on temporary basis provided they fulfil other conditions prescribed in the Rules. They shall be eligible to be appointed substantively as Lower Division Clerks according to the date of their temporary appointment and on occurrence of permanent vacancies and their work being found satisfactory: Provided that a person working temporarily as Lower Division Clerk whose work is not found satisfactory. shall be liable to be removed from service. (i) by giving him one month's notice if he has served temporarily in connection with the affairs on the State for less than three years; and (ii) by following the procedure as laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, if he has served for more than three years.

All person appointed temporarily as Lower Division Clerks after 31-3-1978 shall be required to seek regular recruitment through the Competitive examination as prescribed in the Rules. (3) Notwithstanding anything contained in rule 7, the persons who were appointed temporarily, in . connection with the general strike in accordance with the orders/ instructions issued by the State Government and were holding the posts of Lower Division Clerks on 27. 11. 1975 and, who have not passed the prescribed test conducted by the Appointing Authority under the rules applicable to them at the time of their appointment shall be given one more chance to pass the prescribed test in accordance with the rules applicable to them before coming into force of the rules amended Vide Notification No. F. 2(45)00P/ B- 1172, dated 7. 11. 1975 published in the Rajasthan Rajpatra, dated 27. 11 .

1975, for being appointed substantively as Lower Division Clerks according to the date of their temporary appointment on occurrence of permanent vacancies provided that the service of persons who, fail to pass the said test to be held by the Appointing Authority shall be liable to be terminated by giving one month's notice or pay and allowances in lieu thereof, if they have served temporarily in connection with the affairs of the State for less than three years; and three months notice of pay and allowances in lieu thereof if they have served temporarily in connection with the affair of the -- State for more than three years. " (4) Notwithstanding anything contained in rule 5, all persons working as Lower Division Clerk during the period from 8. 11. 1975 to 31. 3. 1978 oh ad-hoc basis and who could . ;. , , not appear in or pass the competitive/qualifying examination held by the Commission as yet, shall on availability of permanent vacancies, be made permanent subjec!

to the condition that they pass a Performance. Test c. conducted by the Appointing Authority in accordance with the syllabus prescribed in Part·V of Schedule-II. Such persons shall be allowed three chances to pass the said ·test. (5) Notwithstanding r>riything contained in Rule 5, all persons working as Lower Division Clerk during the period from 1. 4. 1978 to 31. 3. 1980 on ad hoc basis and who could not appear in or pass the competitive/qualifying examination held by the commission as yet, shall on availability of permanent vacancies, be made permanent subject to the condition that they pass a performance test conducted by the Head of Department concerned in " accordance with the syllabus prescribed in Part IV of Schedule-II.

Such persons shall be allowed three chances to pass the said test: Provided that if a person fails to pass the said test in three chances he shall be liable to be removed from the services: (i) by giving him one month's notice, if he served ~ temporarily in connection with the affairs of the State for less than three years, and (ii) by allowing procedure as laid down in Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, if he has served for more than three years. - (6) Notwithstanding anything contained in Rule 5, all persons working as Lower Division Clerks during the period from, 1. 4. 1980 to 31. 12. 1984 on urgent temporary basis and who have not passed the competitive examination held by the commission as yet shall on I, ' availability of permanent vacancies be made permanent subject to the condition that they pass qualifying examination conducted by the Commission in accordance with syllabus prescribed in Part-IV of Schedule-II.

Provided that the Commission shall not recommend ·~ any candidate who has failed to obtain a minimum of 35% marks in each of the compulsory and optional papers in the Lower Division Clerks' Examination; ~ Provided further that if a person fails to pass the said examination his services shall be terminated on the expiry of 30 days from the date of receiving list of successful candidates by the Deputy Secretariat to the Government, Department of Personnel and Administrative Reforms (B- I) Department. (7) Notwithstanding anything contained in rule 5, all persons working as Lower Division Clerks during the period from 1. 4. 80 to 31. 12.

84 on urgent temporary basis and who have not passed or appeared in the qualifying examination conducted by the Commission under sub-rule (6) of rule 23 on availability of permanent vacancy be made permanent subject to the condition that they pass a performance test conducted by the Appointing Authority ·~ within a period of three years in _accordance with the provisions of the rules. Such persons shall be allowed three chances to pass the said test to be availed within a period of three years; ,,_ STATE OF RAJASTHAN AND ORS. v. JAGDlSH 1039 ~ Provided that if a person fails to pass the said test in three chances to be availed within a period of three years he shall be liable to be removed from services. (8) Notwithstanding anything c9ntained in rule 5 handicapped persons appointed on the post of L. D. C. during the period from 1. 4. 80 to 31. 3. 88 shall on availability of permanent vacancy be made permanent by ...... , ,/. , the Appointing Authority on their work being satisfactory.

(9) Notwithstanding anything contained in rule 5, all persons appointed as LO. Cs. on ad-hoc basic or on daily wage basis during the period from 1. 1. 85 to 31. 3. 90 and are still working as suc;h on the date this amendment comes into ~ force shall be appointed on regular basis on availability of vacancy subject to the condition that they pass performance test conducted by the Appointing Authority within a period of three years in accordance with the provisions of the rules. Such persons shall be allowed three candidates to pass the said test to be availed within a period of three years; Provided that if a person fails to pass the said test in three chances to be availed within a period of three y years, he shall be liable to be removed from services. 27.

Appointment to the Service: - Appointment by promotion to the posts in the services, specified in the Schedule appended with these Rules, shall be made by the Appointing Authority on the occurrence of the vacancies as determined under rule 8 from amongst the persons selected under Rules 25 and 26, as the case may be. ... ~ 28.

Urgent temporary appointment: - A vacancy in the service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in on urgent temporary basis "by the Government or '""' by the authority competent to make appointments" as the 1 case may be, by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a persons eligible for direct recruitment to the services, where such direct recruitment has been provided under the provisions of these Rules: ,+ ~ Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence where such concurrence is necessary, and shall be terminated immediately on its refusal to concur.

Provided further that in respect of the service or a post in the service for which both the above methods of recruitment have been prescribed, the Government or the authority competent to . nake appointment, as the case may be shall not, save with the specific permission of the Government in the Department of Personnel in the case of State Services and Government in the Administrative Department concerned in respect of other services, till they temporary vacancy against the direct recruitment quota by a whole-time appointment for a period exceeding three 'i months otherwise than out of persons eligible for direct recruitment and after a short-term advertisement.

(2) In the event of non-availability of suitable persons fulfilling the requirements of eligibility for promotion, Government may not withstanding the condition of eligibility for promotion required under sub-rule (1) above, lay down general instructions for grant of permission to fill the vacancies on urgent temporary basis subject to such conditions and restrictions regarding pay and other ' allowance as it may direct. Such appointments shall however be subject to concurrence of the Commission as required under the said sub rule. " 21. The High Court failed to appreciate that the -~ Recruitment Rules made a distinction between appointments • made to the cadre/service in accordance with the relevant Recruitment Rules which are regular and appointments made de hors the regular Recruitment Rules which are ad hoc. 22. So far as the dismissal of some special leave petitions summarily it is made clear that, it does not affect the jurisdiction J. ...

of the Supreme Court to grant special leave to appeal and allow the same. It is well settled that a decision which is per incuriam is not 'law' declared in terms of Article 141 to have a binding effect. (See Prabhakar Rao v. State of A. P. (1985 Supp 2 SCR 537), State of Maharashtra v. Digambar (1995 (4) SCC 683), Union of India v. K. N. Sivadas (1997 (7) SCC 30), State of U. P. V. Synthetics and Chemicals Ltd. (1991 (4) sec 139) and Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court (1990 (3) SCC 682). 2:3. Apart from Haryana Veterinary case (supra) the position in law as stated in State of Punjab v. lshar Singh (2002 _(10) SCC 674) and State of Punjab v. Gurdeep Kumar ( 2003 (11) sec 732) clearly lay down that while reckoning the required length of service the period of ad hoc service has to be excluded.

It is relevant to note that the first selection scale of pay was excluded several years back on completion of 9 years of service subsequent to regularization. After long lapse of time i. e. after nearly 8 years it was not open to be canvassed that the second selection scale of pay ought to be granted after the concerned employees having put in 18 years of service from the date of ad hoc appointment. 24. Above being the position the appeals and transfer petitions deserve to be allowed which we direct. I' Civil Appea/109 @ SLP (CJ 25651 of 2005 25. It is a case of the respondent in the present case that though his case was heard alongwith other cases which are A disposed of today, in the instant case the test was in the year 1981. The regularization was in 1982 and first selection grade was given in 1991 and the second was given iri 2000. That being so, the respondent is entitled to the benefit which the Government has not granted.

The State is directed to consider B this question immediately. 26. Appeal is disposed of. .. G. N. Appeals and transfer petitions disposed of. - ~ -