GHANSHYAM SHARMA AND ORS.versusSTATE OF RAJASTHAN AND ORS.

                     [2010) 15 (ADDL.) S.C.R. 762

  A               GHANSHYAM SHARMA AND ORS.
                                   V.
                  STATE OF RAJASTHAN AND ORS.
                    (Civil Appeal No.4935 of 2006)
                         DECEMBER 1, 2010
,8
           [R.V. RAVEENDRAN AND DR. MUKUNDAKAM
                         SHARMA, JJ.]

            Service Law - Seniority - Rajasthan Secretariat t
    C Ministerial Service Rules, 1970 - Rule 5, Proviso (5A) - Post.
       of stenographer - Claim of Lower Division Clerks(LDCs)/
       Upper Division Clerks(UDCs), who were appointed as regular
       Stenographers (special promotees) on 25-4-1992, under
       proviso (5A) to Rule 5, for retrospective appointment from
    D 1978-1979 when they were initially appointed on ad hoc basis
       -- Consequential seniority dispute between the special
       promotees and directly recruited stenographers - Held: The
      ·High Court proceeded erroneously in assuming that the
,•,    retrospective appointment of LDCs/UDCs under proviso (5A)
    E was valid as if it was with effect from 1-4-1985 - Proviso (5A)
       did not contemplate or provide for or authorize retrospective
       appointment thereunder - Therefore, the decision of High
       Court insofar as it held that retrospective appointment could
       be made with effect from 1-4-1985, set aside - Appointment
    F of the special promotees as stenographers on 25-4-1992 was
       prospective and not with effect from any previous date.

        The instant appeals related to the claim of the Lower
    Division Clerks/Upper Division Clerks, who were
    appointed as regular Stenographers (special promotees)
  G on 25.4.1992, urder proviso (5A) to Rule 5 of the
    Rajasthan Secretariat Ministerial Service Rules, 1970, for
    retrospective appointment from 1978-1979 when they
    were initially appointed on ad hoc basis and the

  H                               762
                                               •
    GHANSHYAM SHARMA AND ORS. v. STATE OF           763
            RAJASTHAN AND ORS.
 consequential seniority dispute between them and the     A
 directly recruited stenographers.
       The questions which arose for consideration of the
  Court were: (i) Whether the special promotees who were
  appointed on 24.S.1992 under proviso (SA) to Rule S 8
  ought to have been appointed with retrospective effect
  from the years 1978 and 1979 when they were appointed
  on ad hoc basis with special pay (as claimed by the
  promotees) or (ii)Whether the appointment of special
  promotees under proviso (SA), could be only prospective C
  from the date of their appointment (2S.4.1992) and not
  from any retrospective date, (as contended by the Direct
  Recruits) or (iii)Whether the orders making the LDCs/
  UDCs appointed as stenographers on 2S.4.1992
. permanent in the post of stenographers with effect from
· 1.4.198S was valid and did not call for interference.    D
     Disposing of the appeals, the Court
       HELD:1. The special promotees who were earlier
  working as LDCs and UDCs were assigned to work E
  against sanctioned vacant posts of stenographers on ad
  hoc basis in the year 1978-79 to 1981-82 pending regular
  recruitment by granting them a special pay of Rs.30/-.
  When they were so required to work as stenographers
  on ad hoc basis with special pay of Rs.30/- in the years F
  1978 and 1979, proviso (SA) to Rule 5 of the Rajasthan
  Secretariat Ministerial Service Rules, 1970, was
  inapplicable to them, as at that time, proviso (SA)
  empowered the appointing authority to make substantive
  appointment to the post of stenographers against
  available vacancies, only from among those who were G
  holding the post of stenographers either in temporary or
  ad hoc capacity in the Rajasthan Secretariat on or before
  31.7.1977. As none of the 22 special promotees was
  h,olding the post of ad hoc stenographers on 31.7.1977 .
/and all, ~ere appointed as ad-hoc. stenographers only / H
                     '
     764   SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A betwaen 17.3.1978 and S.S.1979, they could not be
  considered under proviso (SA) for appointment on regular
  basis. As they were required to work as stenographers
  purely on ad hoc basis from the years 1978 and 1979,
  pending regular recruitment and the regular recruitment
B was in fact done by the Public Service Commission in
  pursuance of advertisement dated 29.2.1980, they were
  all reverted from the post of ad-hoc stenographers to their ..,
  original positions as LDCs and UDCs in the years 1981-
  82. These 22 special promotees who were working as ad-
C hoc stenographers in 1980, applied for direct recruitment
  against the advertisement dated 29.2.1980, but none of
  them was successful in the examinations and
  consequently were not appointed against the direct
  recruitment vacancies filled by RPSC. Significantly, none
  of the said 22 LDCs/UDCs working as ad-hoc
0
  stenographers who were reverted back as LDCs/UDCs
  in 1981-82 challenged their reversion and their reversion
  attained finality. [Para 1S] [777-A-G]

          2. Only when proviso (SA) to Rule S was further
E    amended on 23.1.198S, by changing the cut off date as
     23.S.1979 instead of 31.7.1977, the special promotees
     became eligible for being considered for substantive
     appointment to the post of stenographers under proviso
     (SA). But proviso (SA) did not create a right in those who
.F   were working as ad-hoc/temporary stenographers on or
     before 23.S.1979 for consideration and appointment. The
     appointment to the post of stenographers was SO% by
     direct recruitment and 50% by promotion from amongst
     LDCs and UDCs. Proviso (SA) merely enabled the
G    appointing authority, if he so desired or found it
     necessary to make substantive appointment as
     stenographer, anyone who was working as ad hoc/
     temporary stenographer in the Rajasthan Secretariat on
     or before 23.S.1979, subject to fulfillment of three
H    conditions : (i) that there were vacancies in the post of
  GHANSHYAM SHARMA AND ORS. v. STATE OF                 765
          RAJASTHAN AND ORS.
stenographers; (ii) that the appointing authority found       A
that the work of such temporary or ad hoc stenographer
was satisfactory; and (iii) that the ad hoc/temporary
stenographer possessed the required qualifications on
the date wh~n he was considered for such substantive
appointment. Proviso (5A) starts with the words "that         B
nothing in these rules shall preclude the appointing
authority for making substantive appointment to the post
of stenographer". This shows that proviso (5A) is purely
an enabling provision which gives the option or liberty
to the appointment authority to fill any vacant post of       c
stenographer by making a substantive apj)o!htment of a
person who had worked as ad-hocltemporary
stenographer on or before 23.5.1979 and possessed the
prescribed qualification at the time of substantive
appointment. [Para 16] [777-H; 778-A-E]                       D

     3. In the impugned order, the division bench of the
High Court proceeded erroneously in assuming that the
retrospective appointment of 22 LDCs/UDCs under
proviso (5A) was valid if it was with effect from 1.4.1985.
On a careful consideration of the wording of proviso (SA), E
it is clear that it does not contemplate or provide for or
authorize retrospective appointment thereunder.
Therefore, the decision of the Division Bench of the High
Court insofar as it holds that the retrospective
appointment could be made with effect from 1.4.1985, is F
set aside. In view of the above, the Civ.il Appeal filed by
the special promotees is dismissed and Civil Appeal filed
by the direct recruits is allowed with declaration th<d the
appointment of the special promotees as stenographers           /
onj 25.4.1992 was prospective with effect from that date G
and npt with effect from any previous date (either iil 1978-· '>-.
79 or from 1.4.1985). The State Government is directed to
draw the revised seniority list accordingly. [Paras 18, 19]
[779-E-H]
                                                              H
    766    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A       CIVIL APPELLATE JURSIDICTION : Civil Appeal No.
    4935 of 2006.

      From the Judgment & Order dated 19.01.2005 of the High
  Court of Judicature for Rajasthan at Jaipur in D.B. Civil Special
B Appeal (W) No. 454 of 2003 (in SBCWP No. 2930 of 1995)
  and D.B. Civil Special Appeal (W) No. 1039 of 2002 (in
  SBCWP No. 4663 of 1996.

                                    WITH

c C.A. Nos. 4936, 4937 & 4938 of 2006.
         M.R. Calla, Ranjeeta Rohtagi, Somnadri Gaud (for Parekh
    & Co.) Sushil Kumar Jain, B.K. Satija, Puneet Jain, Ashwin,
    Pratibha Jain, Madhurima Tatia, S.P. Sharma, A. Mishra, N.
    Annapoorani, Aruneshwar Gupta, Ranjeeta Rohtagi for the
0   appearing parties.

          The Judgment of the Court was delivered by

          R.V.RAVEENDRAN, J.

E CIVIL APPEAL NOs. 4935/2006 and 4936/2006.

       1. These appeals relate to the claim of the Lower Division
  Clerks/Upper Division Clerks, who were appointed as regular
  Stenographers (referred to as "special promotees") on
F 25.4.1992, under proviso (SA) to Rule 5 of the Rajasthan
  Secretariat Ministerial Service Rules, 1970 (for short 'the rules'),
  for retrospective appointment from 1978-1979 and the
  consequential seniority dispute between them and the directly
  recruited stenographers. The appellants in CA 4935/2006 are
G the special promotees. The appellants in CA No.4936/2006 are
  the direct recruits.

        2. Rule 5 of the Rules related to method of recruitment and
    provided that recruitment to the service after the

H
  GHANSHYAM SHARMA AND ORSy-V. STATE OF                     767
  RAjASTHAN AND ORS. [R.V. RAVEENDRAN, J.]
commencement of the rules shall be made by the following            A
methods:-
     "(a) direct recruitment as laid down in column No.3 of
          ttie Schedule I in accordance with Part IV of the
          Rules;                                                    B
      (b)   promotion .as laid down in column No.3 of the
            Schedule

                 I in accordance with Part V of the Rules."

Entry (3) in Schedule I related to the post of Stenographers. The
                                                                    c
third column of the said Entry showed the sources of
recruitment with percentages as follows:

     "50% by direct recruitment and 50% from amongst Lower
     Division Clerks and Upper Division Clerks of the Rajasthan     D
     Secretariat according ta proviso (5) of Rule 5."
Proviso (5) to Rule 5 (referred in Entry (3) of Schedule I) read
as follows:
     "that recruitment to fill 50% of the vacancies of              E
     Stenographers in a particular period of recruitment shall
     be made by selection from amongst such of the Lower
     Division Clerks/Upper Division Clerks of the Secretariat
     who have passed the qualifying examination prescribed for
     the Stenographers in these Rules subject to availability of    F
     such persons;
     their selection shall, notwithstanding anything contained in
     Part V of these Rules, be deemed to be promotion with
     effect from the date of their selection. If in any year, the   G
     requisite number of such candidates is not available the
     remaining vacancies shall also be filled by direct
     recruitment through competitive examination according to
     the procedure laid down in Part IV."
                                                                    H.
    768 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. ·

A       3. Proviso (5A) was introduced in the Rules by way of
    amendment to Rule 5, vide notification dated 15.3.1978 and
    read as follows:

        "(5A) that nothing in these Rules shall preclude the
        appointing authority from making substantive appointment
B
        to the posts of stenographer subject to the availability of
        the vacancies from amongst the persons who were holding
        the post of stenographer or steno typist either in temporary
        or a hoc capacity in the Rajasthan Secretariat on 5.5.1970
        or 15.9.1972 and whose work is found satisfactory by the
c       appointing authority and who held either of the following
        qualifications and experience on such date-

        (a) Graduate from a University established by Law in India
        with Shorthand as one of the subject or holder of a diploma
D       in Shorthand; or

        (b) Passed the Higher Secondary Examination from the
        Rajasthan Board of Secondary Education or an equivalent
        examination with Shorthand as one of the subjects and
        must have put in two years service as Stenographer or
E
        Steno typist excluding breaks, if any; or

        (c) Those Stenographers or Steno typists who have put in
        two years' service as such on 15.9.1972 in the Rajasthan
        Secretariat excluding breaks, if any and who are certified
F       by the Appointing Authority to have worked satisfactorily
        and have also passed competitive examination mentioned
        in Part II of Schedule II either in English Shorthand or Hindi
        Shorthand apart from passing the English and Hindi
        typewriting tests. x x x"
G
    By Government order dated 19.6.1978 the existing Lower
    Division Clerks/Upper Division Clerks who were working or
    required to work against the sanctioned post of Stenographers
    on purely ad-hoc basis were allowed special pay of Rs.30 per
H
   GHANSHYAM SHARMA AND ORS. v. STATE OF                    769
   RAJASTHAN AND ORS. [R.V. RAVEENDRAN, J.]
 month, provided they possessed one of the following                A
 qualifications either in English or Hindi:

     "(i) pass·in Higher Secondary Examination or degree of a
     University established under law with Stenography as one
     of the subjects.                                               B

     (ii) pass in the examination in stenography held by the HCM
     State Institute of Public Administration or Bhasha Vibhag.

     (iii) a diploma in stenography from Industrial Training
     Institute.                                                     C

     (iv) completion of training organized by the Organization
     & Method Department and also passing the test, if any,
     held by the Organization & Method Department."

 The grant of special pay was further subject to _the following     D
 conditions:-

     "(i) The appointing authority certifies in the order
     sanctioning special pay to the effect that Stenographer
     regularly recruited through Rajasthan Public Service           E
     Commission is not available.

     (ii) The special pay shall be granted to the lower division
     clerk till a Stenographer recruited through Rajasthan Public
     Service Commission is not made available in the
     Department."                                                   F

..     4. Proviso (SA) was amended several times postponing
··the cut off date. The said proviso as amended on 23.S.1979
   reads as follows:
                                                                    G
     "(SA) that nothing in these Rules shall preclude the
     appointing authority from mciking substantive appointment
     to the post of Stenographer or the steno-typist, as the case
     may be, subject to the availability of vacancies from
     amongst the persons who were holding the post of               H
    '770 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A       Stenographer either in temporary or ad hoc capacity in the
        Rajasthan Secretariat on or before 31. 7 .1977 and whose
        work is found satisfactory by the appointing authority and
        who fulfilled either of the following qualifications on such
        dates. x x x x"
B
    Prnviso (5A) was again amended on 23.1.1985 and the
    proviso as amended read as follows:

         "(SA) that nothing in these Rules shall preclude the
       . appointing authority from making substantive appointment
C        to the post of Stenographer or the steno-typist, as the case
         may be, subje'ct to the availability of vacancies from
         amongst ·the persons who were holding the post of
         Stenographer ~ither in temporary or ad hoc capacity in the
         Rajasthan Secretariat on or before 23.5.1979 and whose
0        work is found satisfactory by the appointing authority and
         who fulfilled either of the following qualifications on such
         date.xx xx"

  Proviso (5A) was thereafter amended on 18.9.1987, the
E amendment being deemed to have been made with effect from
  23.1.1985. The amended proviso (5A) read as under :

        "(5A) that nothing in these Rules shall preclude the
        appointing authority from making substantive appointment
        to the post of Stenographer or the steno-typist, as the case
F       may be, subject to the availability of vacancies from
        amongst the persons who were holding the post of
        Stenographer either in temporary or ad hoc capacity in the
        Rajasthan Secretariat on or before 23.5.1979 and also
        continuously holding the post on 23.1.1985 and whose
G       work is found satisfactory by the appointing authority and
        who fulfilled either of the following qualifications on such
        date.xx xx"

      5. Due to shortage of Stenographers in the Secretariat
H Service, the special promotees, who were working as LDCs/
    GHANSHYAM SHARMA AND ORS. v. STATE OF                   771
    RAJASTHAN AND ORS. [R.V. RAVEENDRAN, j,]
 UDCs, were appointed as Stenographers on ad hoc basis, on         A
 various dates between 17.3.1978 and 5.5.1979, and were paid
 the special pay of Rs.30 per month from 19.6.1978 onwards.
 On 29.2.1980; Rajasthan Public Service Commission ('RPSC'
 for short) invited applications for 86 posts of stenographers.
 After conducting .an examinatic;>n, RPSC appointed several        8
 stenographers by way of direct recruitment. The special
 promotees,· who were then working as ad-hoc stenographers,
 applied in response to the. said advertisement and participated
 in the examination, but were not successful and were not
 selected. As and when the directly recruited stenographers        c
 were given postings, the special promotees working as ad-hoc
 stenographers were reverted from the post of·Stenographers
 to their substantive posts as LDCs/UDCs in the years 1981
 and 1982.

        6. When proviso (5A) was amended on 23.1.1985 D
  providing that persons who were holding the post of
  Stenographer either   I
                              in temporary or adhoc capacity in
  Rajasthan Secretariat on or before 23.5.1979 could be
  appointed on substantive basis, the special promotees (who
  had been reverted as LDCs/UDCs in 1981-82) expected that E
  they will be considered for substantive appointment as .
  Stenographers, as they fulfilled the requirements proviso (5A).
  But when proviso (5A) was further amended on 18.9.1987
  clarifying that only those who were working as Stenographers
  on or before 23.5.1979 and who continued to hold the post as F
  on 23.1.1985, were eligible for consideration under proviso
  (5A), they felt that their "right" to be considered for appointment
  as Stenographers on substantive basis was taken away, as
  they were not working as ad-hoc stenographers upto 23.1.1985
" though they were holding the post of Stenographer on adhoc G
  basis on 23.5.1979. Therefore some of the special promotees
  approached the Rajasthan High Court and filed WP No.2116/
  1989 challenging the amendment dated 18.9.1987 to proviso
  (5A) to Rule 5 of the Rules. The said writ petition was allowe.d
  by a Division Bench of the Rajasthan High Court on 7.8.1991 H
    772    SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A striking down the amendment dated 18.9.1987 to proviso (5A)
  as being unconstitutional. As a consequence, the High Court
  directed the State Government to consider the writ petitioners
  (promotees) who were working as LDCs/UDCs for substantive
  appointmel")t as Stenographers in accordance with the Rules,
B as amended on 23.1.1985 and if as a result of such
  consideration, they were found suitable, they should be
  appointed as Stenographers with consequential benefits.

         7. In pursuance of'the said order dated 7.8.1991, the State
    Government by order dated 25.4.1992 appointed 27 LDCs/
C   UDCs (who were working as steno-typists as on 23.S.1979 on
    special pay of Rs.30 per month), to the post of steno-typists
    under proviso (5A) to Rule 5 as amended by notification dated
    23.1.1985, with a note that separate orders will be issued in
    regard to their seniority and other benefits. By another order
D   dated 25. 7 .1994, it was noted that two of appointees ha,d opted
    to continue in their original position; and that the remaining 25
    candidates appointed on 25.4.1992 would be considered as
    regularly appointed to the post of Stenographer with effect from
    1.4.1985 and they will be entitled to notional fixation of salary
E   from 1.4.1985 to the date of taking over charge. It was further
    provided that the seniority of the said 25 employees shall be
    fixed in accordance with Rule 29 of the RuJes and they shall
    be placed below the persons selected by the RPSC in 1980
    and above the persons selected by RPSC in the year 1985.
F   This was followed by another order dated 15.11.1995 making
    22 of the promotees (including the appellants in CA No. 4935/
    2006) permanent on the post of stenographers with effect from
    1.4.1985.

G       8. The order dated 15.11.1995 gave rise to the following
    two writ petitions:-

       (i) Civil Writ petition No. 2930/1995 by the 22 special
  promotees praying that their appointment to the post of
  Stenographers should be made from the respective dates of
H their initial appointment in the year 1978-1979 against vacant
    GHANSHYAM SHARMA AND ORS. v STATE OF                    773
    RAJASTHAN AND ORS. [R.V. RAVEENDRAN, J.]

. posts as per proviso (5A) to Rule 5 (instead of 1.4.1985) and     A
; they should be assigned seniority with effect from such dates
  with all consequential benefits;

      (ii) Civil Writ Petition No. 4663/1996 by four directly
 recruited stenographers (appellants in CA No.4936/2006)            8
 seeking quashing of the notification dated 23.1.1985 amending
 proviso (5A), and the order dated 15.11.1995 by which 22
 special promotees were made permanant in the post of
 stenographers with effect from 1.4.1985. They also sought
 drawing up of a seniority :ist of the Stenographers afresh after   C
 placing them above those persons whose names were shown
 in the seniority list dated 15.11.1995.

      9. A learned Single Judge by order dated 21.10.2002
 allowed C.W.P. No. 2930/1995 filed by the special promotees
 and dismissed C.W.P. No. 4663/1996 filed by the direct             D
 recruits. He directed the State Government to implement the
 order dated 7.8.1991 in CWP No.2116/1989 and promote the
 clerks who were appointed in 1978 or 1979 temporqrily or on
 ad-hoc basis, as Stenographers from the date of their initial
 appointment in 1978 and 1979 against vacant substantive posts      E
 and assign seniority to them as Stenographers from the
 respective dates of initial appointments in 1978 and 1979.

       10. The said order dated 21.10.2002 in CWP No.2930/
 1995 was challenged in following three special appeals:- (i)
                                                                    F
 CSA No. 1038/2002 by the four direct recruit stenographers;
 (ii) CSA No. 79/2003 by the State of Rajasthan; and (iii) CSA
 No. 454/2003 by other direct recruits (Govind Ram Ailani and
 others). The four direct recruits (appellants in CA No.4936/
 2006) also filed CSA No. 1039/2002 against the dismissal of
 WP No.4663/1996. All these four appeals were disposed of           G
 by the impugned common judgment dated 19.1.2005 by a
 Division Bench of the Rajasthan High Court. The division bench
 held that the special promotees who were appointed as
 Stenographers after 1.4.1985, that is in the year 1992 were not
 entitled to seniority from 1978 and 1979, as no vacancies were     H
     '
     774   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


 A 0 available after the direct recruitment in 1981. Therefore the
     division bench directed the State Government as follows: (a)
     to assign seniority to the direct recruits from the respective
     dates of their appointment; (b) not to assign special promotees
     appointed as Stenographers in the year 1992 under proviso
1
'9   (5A), seniority prior to 1.4.1985; and (c) if any directly recruited
     stenographer was selected and appointed after 1.4.1985 will
     be junior to the special promotees appointed under proviso
     (5A) with effect from 1.4:1985.

       11. The said order of the division bench dated 1:9.1.2005
C is challenged in these ap:;>eals as stated above.

          11.1. Civil Appeal No4935/2006 is filed by the special
     promotees aggrieved by the finding that stenographers who
     have selected and appointed under proviso (5A) in 1992 could
 D not be treated as having been appointed prior to 1.4.1985 and
     that they will be senior only to the direct recruits who were
     selected and appointed after 1.4.1985. The special promotees
     submitted that they were not claiming any monetary benefit on
     the basis of their ad hoc service, but were only claiming that
 E they were entitled to be appointed on regular basis from the
     d~te of their initial ad hoc or temporary appointment having
' l regard to proviso (5A) to Rule 5, as the object of the said
 . . prpviso was to absorb all LDCs/UDCs who were appointed as
     stenographers on adchoc basis into substantive vacancies, as
 F regular stenographers from the dat~ they were appointed on
·    ad hoc basis.                               ·

'·     11.2. Civil A'ppeal No.4936/2006 is ffled by the four direct
  recruits who were selected in 1981, 1985 and 1989. They are
  aggrieved by the decision of the Division Bench that the
G special promotees are entitled to seniority with effect from
  1.4.1985. They contend that the wording of proviso (5A) to Rule
  5 cjoes not authorize or enable retrospective appointments; they
  contended that proviso (5A) did not provide for retrospective
  appointment; that the said proviso only enabled the appointing
H authority to appoint prospectively to existing vaccint posts,
  GHANSHYAM SHARMA AND ORS. v. STATE OF · 77,15
  RAJASTHAN AND ORS. [R.V. RAVEENDRAN, J.]
persons who were working as Stenographers either on                    A
temporary or ad hoc basis and whose services were
satisfactory and who possessed the prescribed qualifications;
and that as appointments were made on 25.4.1992 it could be
effective only from 25.4.1992 and not from any earlier date.
They conten.ded that as all of them were appointed as direct           B
recruits prior to 1992, (that is in the years 1981, 1985 and
1989), they had to be treated as senior to the 22 special
promotees who were appointed on 25.4.1992.

       12. Therefore, the questions that arise for our consideration   C
are:

       (i) Whether the special promotees who were appointed on
       24.5.1992 under proviso (SA) to Rule 5 in pursuance of
       the decision of the High Court dated 7.8.1991 ought to
       have been appointed with retrospective effect from the          ,D
       years 1978 and 1979 when they were appointed on ad
       hoc basis with special pay (as claimed by the promotees)?

                                    Or

       (ii) Whether the appointment of special promotees under E
       proviso (SA), could be only prospective from the date of
       their appointment (25.4.1992) and not from any
       retrospective date, (as contended by the Direct Recruits)
       ?
                                                                       F
                                    Or

      (iii) Whether the orders dated 15.11.1995 making the
      LDCs/UDCs appointed as stenographers on 25.4.1992
      permanent in the post of stenographers with effect from
   ·· 1.4.1985 is valid and does not call for interference?            G

   · 13. The order dated 7.8.1991 in CWP No. 2116/1989
attained finality as challenge thereto was rejected by this Court
on 9.12.1991. The issue decided by the High Court in order
dated 7.8.1991 was that the amendment dated 19.9.1987   ,      to      H
   776    SUPREME COURT REPORTS [2010) 1S (ADDL.) S.C.R.


A proviso (SA) adding the words "and also continuously holding
  the post on 23.1.198S" was invalid and consequently the said
  addition was quashed. Therefore we have to proceed on the
  basis that proviso (SA) should be read without the 1987
  amendment, that is as follows:
B
       "(SA) that nothing in thPse Rules shall preclude the
        appointing authority from making substantive appointment
       to the post of Stenographer or the steno-typist, as the case
        may be, subject to the availability of vacancies from
       amongst the persons who were holding ,the post of
c      Stenographer either in temporary or ad hoc capacity in the
        Rajasthan Secretariat on or before 23.5.1979 and whose
       work is found satisfactory by the appointing authority and
       who fulfilled either of the following qualifications on such
       .date ......... "
D
        Proviso (SA) gives a -::lear indication that it could be
   .woked only in regard to temporary or ad-hoc stenographers
  who were working as such on the ':late of consideration under
  the r.aid proviso in addition to the requirement that they should
~ have heiu such temporary or ad-hoc position on or before
  23.S.1979. This is because proviso (SA) uses the expression
  'who;.;e 1.ork is found satisfactory' and not 'whose work was
  found to be satisfactory'. As the order dated 7.8.1991 of the
   High Court had attained finality, we do not propose to disturb
F the validity of appointment of the special promotees under
  order dated 2S.4.1992, even though their eligibility was doubtful
  as they had ceased to hold such temporary or ad-hoc position
  fr¢m 1981-82. Be that as it may.
       14. The order of the High Court dated 7.8.1991 was
G constn.ied by the State Government as directing consideration
  of the special promotees for substantive ~ppointment as
  stenographers, if they were in service on or before 23.5.1979
  and their work was satisfactory and they possessed the
  qualifications prescribed in that proviso.
H
    GHANSHYAM SHARMA AND ORS.     STATE OF  v:                777
    RAJASTHAN AND ORS. [R.V. RAVEENDRAN, J.]
       1S. The special promotees who were earlie~ working as         A
  LDCs and UDCs were assigned to work against sanctioned
  vacant posts of stenographers on ad hoc basis in the year
  1978-79 to 1981-82 pending regular recruitment by granting
  them a special pay of Rs.30/-. When they were so required to
  work as stenographers on ad hoc basis with special pay of          B
  Rs.30/- in the years 1978 and 1979, proviso (SA) to Rule S was
  inapplicable to them, as at that time, proviso (SA) empowered
  the appointing authority to make substantive appointment to the
  postof   stenographers against available vacancies, only from
  among those who were holding the post of stenographers either      'r
· in temporary or ad hoc capacity in the Rajasthan Secretariat       I"
  on or before 31. 7 .1977. As none of the 22 special promotees
  was holding the post of ad hoc stenographers on 31. 7 .1977
  and all were appointed as ad-hoc stenographers only betWeen
  11.3·.1978 and S.S.1979, they could not be considered under
  proviso (SA) for appointment on regular basis. As they were        0
  required to work as stenographers purely on ad hoc basis from
  the years 1978 and 1979, pending regular recruitment and th.e
  regular recruitment was. in fact done by· the Public Service
  Commission in pursuance of advertisem~nt dated· 29.2.. :1.QSO,
  they were all reverted from the post of ad-hoc stenographers       E
  to their original positions. as LDCs and UDCs in the. years
   t981-82. As noticed above these 22 special promotees who
  were working as ad-hoc stenographers'·'in 1980, applied for
  direct recruitment against the advertisement dated 29.2.1980;
  but none of them was successful in the examinations and            F
  consequently were not appointed against the dire_ct recruitmen.t
  vacancies filled by RPSC. Significantly, none of thE:l sai~ 22
  LDCs/UDCs working as ad~hoc stenographers who were
. reverted l)ack as l:.DCs/UDCs in 1981-82 challenged t~elf
  reversion and their reversio_n attained finality.                  G
      . 16. Only when proviso. (SA) to Rule s was further amended
 on 23.1.1985, by changing the cut off date as 23;5.197.9
 insteac;:I of 31.7.1977, the special promotees b~came.' eligible
 for being considered for substantive appointr;nent to the post
                                                                     H
    778   SUPREME COURT REP.ORTS [2010] 15 (ADDL.) S.C.R.


A of stenographers under proviso (5A). But proviso (5A) did not
  create a right in those who were working as ad-hoc/temporary
  st~nographers on or before 23.5.1979 for consideration and
  appointment. As noticed above, the appointment to the post of
  stenographers was 50% by direct recruitment and 50% by
B promotion from amongst LDCs and UDCs. Proviso (SA)
  merely enabled the appointing authority, if he so desired or
  found it necessary to make substantive appointment as
  stenographer, anyone who was working as ad hoc/temporary ,
  stenographer in the Rajasthan Secretariat on or before
c.23.S.1979, subject to fulfillment of three conditions : (i) that there
  were vacancies in the post of stenographers; (ii) that the
  appointing authority found that the work of such temporary or
  ad hoc stenographer was ~atisfactory; and (iii) that the ad hoc/
  temporary stenographer possessed the required qualifications
0 on the date when he was considered for such substantive
  appointment. Proviso (SA) starts with the words "that nothing
  in these rules shall preclude the appointing authority for making
  substantive appointment to the post of stenographer". This
  shows that proviso (SA) is purely an enabling provision which
E gives the option or liberty to the appointment authority to fill any
  vacant post of stenographer by making a substantive
  appointment of a person who had worked as ad-hoc/temporary
  stenographer on or before 23.S.1979 and possessed the
  prescribed qualification at the time of substantive appointment.

F       17. When the Division Bench of the High Court by order
   dated 7.8.1991 held that the amendment to proviso (SA) on
   18.9.1987 was invalid, it only meant that the option or liberty
   became available to the appointing authority in terms of the said
   proviso as it stood before the amendment dated 18.9.1987 and
G that the requirement added by the said amendment that the ad
   hqc/temporary stenographer should also be continuously
   working till 23.1.198S was deleted. The said order dated
 • 7.8.1991 of the High Court by no stretch of imagination could
   be construed as mandating the appointing authority to consider
H all LDCs and UDCs who were working as ad hoc/temporary
   GHANSHYAM SHARMA AND ORS. v. STATE OF                      779
   RAJASTHAN AND ORS. [R.V. RAVEENDRAN, J.]
 stenographers on or before 23.5.1979 for being regularly             A
 appointed as stenographers on substantive basis, even if they
 had ceased to hold such position in 1981-82. The regular
 appointments by way of promotion from amongst LDCs and
 UDCswas to be made in the normal course as per proviso (5)
 and not under proviso (5A). Proviso (5A) gave an additional          B
 option to the appointing authority to fill any vacancy in the post
 of stenographers by making substantive appointment as special
 cases or to meet unforeseen contingencies or to meet urgent
 requirements. This obviously means that the power under
 proviso (5A) could only be exercised with reference to the           c
 current needs and requirements when the consideration under
 proviso (5A) takes place and not with any retrospective effect.

      - 18. Therefore, any appointment under proviso (5A) could
   be only by way of current appointment with prospective effect.
   The order dated 7.8.1991 could not be construed as directing       D
   otherwise. In the impugned order, the division bench of the High
   Court proceeded erroneously in assuming that the retrospective
   appointment of 22 LDCs/UDCs under proviso (5A) was valid
   if it was with effect from 1.4.1985. On a careful consideration
   of the wording of proviso (5A), we are of the view that it does    E
.· not contemplate or provide for or authorize retrospective
   appointment thereunder. Therefore, we accept the contention
   of the direct recruits, reject the contention of the special
   promotees and set aside the decision of the Division Bench
   of the High Court insofar as it holds that the retrospective       F
   appointment could be made with effect from 1.4.1985.

      19. In view of the above, we dismiss Civil Appeal No.4935,
 of 2006 filed by the special promotees and allow Civil Appeal
 No.4936 of 2006 and declare that the appointment of the G
 special promotees as stenographers on 25.4.1992 was
 prospective with effect from that date and not with effect from
 any previous date (either in 1978-79 or from 1.4.1985). We
 direct the State Government to draw the revised seniority list
 accordingly.
                                                                 H
    780                                       ' S.C.R.
          SUPREME COURT REPORTS (2010] 15 (ADDL.)


A   Re . Civil Appeal Nos 4937 and 4938 of 2006.

       20. The appellant in CA No.4937 of 2006 was initially
  appointed as an LDC. By order dated 23.11.1972, he was
  appointed as an ad hoc Stenographer in the Education
  Department. He was taken on transfer, on the post of
8
  Stenographer in the Secretariat, temporarily, continuing his lien
  on his post in the parent department, vide order dated 7.3.1977
  and he joined the Secretariat on 23.3.1977. His appointment
  as Stenographer was made substantive with effect from
  1S.3;1978 in his parent (Education) department on 3. 7 .1979.
C By an ordar dated 19.10.1981 made under proviso (SA), his
  appointment on the post of Stenograrher in the Secretariat was
  made substantive with effect from 23.S.1979.

       21. The appellants in CA No.4938 of 2006 were initially
D appointed as LDCs. They were appointed as ad hoc
  Stenographers on 4.4.1977, 4.4.1977 and 11.4.1977. They
  WE~re extended special pay by order dated 7. 7 .1978. They were
  appointed as regular stenographers with effect from the date
  of their initial appointment as stenographers, vide order dated
E 16.11.1981, under proviso (SA).

         22. One Kripa Shankar Sharma who was directly recruited
    as a Stenographer in the Secretariat on 7.2.1981 and
    confirmed with effect from 2S.8.1983 filed a writ petition (CWP
    No.1433 of 1983) for the following reliefs :
F
          (a)   The notification dated 23.S.1979 which amended
                proviso (SA) by substituting the date 31.7.1977 in
                place of the dates S.S.1970 or 1S.9.1972 and the
                subsequent notification dated 9.6.1983 by which the
G               date 31.7.1977 was substituted as 14.3.1978 in
                proviso (SA) were invalid.

          (b)   For a declaration that the order dated 16.11.1981
                by which the State Government appointed the six
                persons (including appellants 1 to 3 in CA No.4938/
H
   GHANSHYAM SHARMA AND ORS. v. STATE OF                     781
   RAJASTHAN AND ORS. [R.V. RAVEENDRAN, ..I.]
            2006) as stenographers on regular basis from the        A
            date on which they were initially performing the
            duties as stenographers on ad hoc basis and the
            subsequent show cause notice dated 1S.12.1981
            proposing to confirm them in the post of
            stenographers with effect from 23.5.1979 and            B
            inviting objections to the said proposal from
            affected persons were invalid.

      (c)   For a declaration that the substantive appointment
            of ad hoc/temporary stenographers under proviso         C
            (5A) was null and void and that consequently they
            should be declared as ineligible for appearing in the
            Personal Assistant examination.

     He contended that he was senior to the appellants in C.A..
No.4938 of 2006 as their appointments as stenographers              D
under Proviso (SA) was by order dated 16.11.1981, whereas
he was directly appointed as stenographer on 7.2.1981. The
said writ petition was dismissed by a learned single Judge, by
order dated 30.11.1999. The special appeal filed by the said
Kripa Shankar Sharma against the said decision of the learned       E
Single Judge was allowed by a Division Bench by the
impugned order dated 17.S.200S in terms of the order dated
19.1.200S which is challenged by the stenographers appointed
under proviso (SA) in Civil Appeal Nos.4937 and 4938 of 2006.
                                                                    F
      23. The appellants in C.A. No.4938/2006 submitted that
their cases were different from the cases of special promotees
considered in CA Nos.493S & 4936/2006. It is pointed out that
the ad hoc appointment of the special promotees in 1978-79
had come to an end in 1981-82 when they were reverted as
LDCs/UDCs and they were not working as stenographers when           G
they were appointed. On the other hand, the appellants in CA
No.4938/2006 were working as ad hoc stenos both on
23.S.1979 and on 16.11.1981 when the order under proviso
(5A) was made. On careful consideration, we find that the said
                                                                    H
    782   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.'
                                    i




A distinction has no relevance to the issue on hand which is
  whether the appointment under proviso (5A) could be with
  retrospective effect. As seen from the facts narrated, our
  decision in Civil Appeal Nos.493S and 4936 of 2006 that the
  appointment under proviso (SA) could not be retrospective will
B apply to Civil Appeal No.4938 of 2006. ,         \
                                                       \
                                                        '
       24. The position of the appellant in Civil Appeal' No.4937
  of2006 is however different His appointment as stenographer
  was made substantive in his parent department with effect from
  15.3.1978. By order dated 19.10.1981, his appointment was
C made substantive in the Secretariat with effect from 23.S.1979,
  by which date he was a stenographer 9n substantive basis in
  his parent department. More importantly, the order dated
  19.10.1981 under proviso (SA), appointing him as stenographer
  on substantive basis in the Secretariat was not challenged by
D Kripa Shankar Sharma in his writ petition (WP No.1433 of
  1983). He challenged only the order dated 16.11.1981 under
  proviso (5A) relating to the appellants in CA No.4938 of 2006.
  Though Kripa Shankar Sharma had impleaded the appellant
  in Civil Appeal No.4937 of 2006 as the sixth respondent in his
E writ petition, as Kripa Shankar Sharma had failed to challenge.
  the order dated 19.10.1981 under proviso (SA) made in his
  case, no relief could have been granted against the appellant
  in C.A.No.4937 of 2006.

F      25. In view of the above, following the decision in Civil
  Appeal Nos.493S and 4936 of 2006, we dismiss the Civil
  Appeal No.4938 of 2006. However, Civil Appeal No.4937 of
  2006 is allowed and the orders of the learned Single Judge and
  the Division Bench of the High Court are set aside and the Writ
G Petition No.1433 of 1983 is dismissed in so far as the appellant
  in CA No.4937 of 2006 (Hariharan Nair) .

    B.B.B.                                 . Appeals disposed of.