Holding

Ad‑hoc appointments are to a post, not to the cadre/service, and therefore the period of ad‑hoc service does not count for seniority or promotion; the appeals are allowed.

Summary

The Supreme Court examined whether ad‑hoc, daily‑wage or work‑charge appointments made under various Rajasthan service rules constitute appointments to the cadre/service in accordance with the recruitment rules. The petitioners argued that such appointments should be treated as regular service for purposes of seniority and selection‑grade benefits, relying on earlier judgments. The Court held that ad‑hoc appointments are only to a post, not to the cadre, and are not made under the regular recruitment rules; consequently, the period of ad‑hoc service cannot be counted for seniority or promotion. It further observed that regularisation orders, once passed, were not challenged at the appropriate time and cannot be reopened merely to claim ad‑hoc benefits. The Court clarified the distinction between regular and ad‑hoc appointments under the Rajasthan rules and rejected the High Court’s conflation of the two. As a result, the appeals and transfer petitions were allowed, directing the State to grant the appropriate selection‑grade benefits based on the correct service tenure.

Issues considered

Whether ad‑hoc, daily‑wage or work‑charge appointments are appointments to the cadre/service under the recruitment rules.
Whether the period of ad‑hoc service should be counted for seniority and selection‑grade benefits.
Whether regularisation orders can be challenged retrospectively to obtain ad‑hoc benefits.
Interpretation of Rajasthan service rules and the distinction between regular and ad‑hoc appointments.
Effect of per incuriam decisions on the binding nature of earlier judgments.

Legislation cited

Constitution of Indias. 136, s. 141, s. 309

Subjects

ad hoc appointmentregularisationcadre serviceseniorityselection gradeRajasthan service rulesrecruitment rulesper incuriamspecial leave petition

Judgment

[2009] 8 S.C.R. 1011

j
STATE OF RAJASTHAN AND ORS. A
- v.
JAGDISH NARAIN CHATURVEDI
(Civil Appeal No. 3620 of 2009)
MAY 8, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
"~ GANGULY, JJ.]

SERVICE LAW:
c
RAJAS THAN SUB ORD/NA TE OFFICES MINISTER/AL
STAFF RULES, 1957:

RAJAS THAN ENGINEERING SUBORDINATE
~ SEF?VICE (IRRIGATION BRANCH) RULES, 1967:
4 D
WORK CHARGED EMPLOYEES SERVICES RULES,
1964:

RAJAS THAN AGRICULTURAL SUBORDINATE
SEF?VICE RULES, 1978:
E
RAJAS THAN FOREST SUB ORD/NA TE SERVICE
1
RULES, 1963:

RAJAS THAN PANCHAYAT SAMIT/ AND ZILA
PAl"::?.ISHAD SERVICE RULES, 1959: F
_,.
~
RAJASTHAN SECRETARIAT MINISTERIAL SERVICE
RULES, 1970:

Adhoc appointment or appointment on daily wage or work
~·> -+ charge basis - Whether appointments made to the cadre/ G
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
1011 H
1012 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
C 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

0 HELD: 1. If initially the appointment was a
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
E 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
F 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
G 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
H (Mrs.) v. State of Rajasthan 2003 (3) SCC 485; Santosh
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1013
NARAIN CHATURVEDI

-~
Kumar and Ors. v. G. R. Chawla and others 2003 (10) sec A
513; A.G. Sainath Reddy v. Govt. of A.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 B
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".
c
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] D

Chakradhar Paswan v. State of Bihar 1988 (2) SCC 214,
I
ti!!lied on.

3. In order to become "a member of service" E
candidate must satisfy four conditions, namely {i) the
appointment must be in a substantive capacity; (ii) to a
4 post in the service i.e. in a substantive vacancy; (iii) made
according to rules; (iv) within the quota prescribed for the
s;ource. [Para 17) [1034-E-F]
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]
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 H
""'!'
1014 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
B 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
C 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
D 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)
E (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.
F 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
G 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
H after the concerned employees having put in 18 years of .. I

~.
SiATE OF RAJASTHAN AND ORS. v. JAGDISH 1015
NARAIN CHATURVEDI

service from the date of ad hoc appointment. [Para 23) A
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.
B
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 c
State is directed to consider this question immediately.
[Para 25] [1042-A-B]

Case Law Reference:
D
2000 (8) sec 4 referred to Par~ 3

2003 (3) sec 485 referred to Para 12

2003 (10) sec 513 referred to Para 12
E
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
F
1995 (1) sec 745 referred to Para 13

1997 (1) sec 621 referred to Para 14

1988 (2) sec 214 relied on Para 16
G
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
H
1016 SUPREME COURT REPORTS [2009] 8 S.C.R.

·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

B 2003 (11) sec 132 relied on Para 23

WITH
,_ '
Civil Appeal No. 3621/2009
c Civil Appeal No. 3622/2009
Civil Appeal No. 3624-25/2009

Civil Appeal No. 3626/2009
D j
Civil Appeal No. 3627/2009

Civil Appeal No. 3628/2009

Civil Appeal No. 3629/2009
E
Civil Appeal No. 3630/2009

Civil Appeal No. 3631/2009 -f

F Civil Appeal No. 3632/2009
•
Civil Appeal No. 3633/2009

Civil Appeal No. 3635/2009
G Civil Appeal No. 3636/2009

.. 1'
Civil Appeal No. 3637/2009

Civil Appeal No. 3638/2009
H
STATE OF. RAJASTHAN AND ORS. v. JAGDISH 1017
NARAIN CHATURVEDI
• Civil Appeal No. 3639/2009 A

Civil Appeal No. 3640/2009

Civil ~\ppeal No. 3641/2009
B
Civil Appeal No. 3642/2009
~
" .Civil Appeal No. 3643/2009

Civil Appeal No. 3644/2009

. Civil Appeal No. 3645/2009
c
Civil Appeal No. 3646/2009

~
Civil Appeal No. 3647/2009
D
Civil Appeal No. 3648/2009

Civil Appeal No. 3649/2009

Civil Appeal No. 3650/2009
E
Civil Appeal No. 3651/2009
.~
Civil Appeal No. 3652/2009

Civil Appeal No. 3653/2009
F
Civil Appeal No. 3654/2009

Civil Appeal No. 3655/2009

Civil Appeal No. 3656/2009
G.
• .~ Civil Appeal No. 3657/2009

Civil Appeal No. 3658/2009
Civil Appeal No. 3659/2009
H
pvil Appeal No. 3660/2009
1018 SUPREME COURT REPORTS [2009] 8 S.C.R.

A Civil Appeal No. 3661/2009

Civil Appeal No. 3662/2009

Civil Appeal No. 3663/2009

B Civil Appeal No. 3664/2009
Civil Appeal No. 3665/2009
,
Civil Appeal No. 3666/2009 '

c Civil Appeal No. 3667/2009
Civil Appeal No. 3668/2009

Civil Appeal No. 3669/2009

D Civil Appeal No. 3670/2009
Civil Appeal No. 3682/2009

Civil Appeal No. 3683/2009

E Civil Appeal No. 3684/2009
Civil Appeal No. 3685/2009

Civil Appeal No. 3686/2009

F Civil Appeal No. 3687/2009
Civil Appeal No. 3688/2009

Civil Appeal No. 3689/2009

G Civil Appeal No. 3690/2009

Civil Appeal No. 3691/2009

Civil Appeal No. 3692/2009

H Civil Appeal No. 3693/2009
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1019
NARAIN CHATURVEDI

• Civil Appeal No. 3694/2009 A

Civi!I Appeal No. 3696/2009 .

Civi.I Appeal No. 3697/2009

Civil Appeal No. 3698/2009 B

4 Civil Appeal No. 3700/2009
~

Civill Appeal No. 3701/2009

Civil Appeal No. 3703/2009 c
Civil Appeal No. 3704/2009

Civil Appeal No. 3706/2009
.. CivE Appeal No. 3707/2009 . D

Civi~ Appeal No. 3708/2009

Civil Appeal No. 3710/2009

Civil Appeal No. 3712/2009 E

CivH Appeal No. 3713/2009

Civil Appeal No. 3715/2009

Civil Appeal No. 3716/2009 F

Civil Appeal No. 3717/2009

Civil Appeal No. 3718/2009

Civil Appeal No. 3719/2009 G
.....
Civil Appeal No. 3720/2009

Civil Appeal No. 3721/2009

H
1020 SUPREME COURT REPORTS [2009] 8 S.C.R.

...
A Civil Appeal No. 3722/2009
Civil Appeal No. 3723/2009

Civil Appeal No. 3724/2009

B Civil Appeal No. 3725/2009
Civil Appeal No. 3726/2009 )'
"
Civil Appeal No. 3727/2009

c Civil Appeal No. 3728/2009
Civil Appeal No. 3729/2009

Civil Appeal No. 3730/2009
i
D Civil Appeal No. 3731/2009
Civil Appeal No. 3732/2009

Civil Appeal No. 3733/2009

E Civil Appeal No. 3734/2009
Civil Appeal No. 3735/2009

Civil Appeal No. 373612009

F Civil Appeal No. 3737/2009
Civil Appeal No. 3738/2009

Civil Appeal No. 3739/2009

G Civil Appeal No. 3740/2009
\I- ..
Civil Appeal No. 3741/2009

Civil Appeal No. 3742/2009

H
I
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1021
NARAIN CHATURVEDI
i Civil Appeal No. 3743/2009 A

Civil Appeal No. 3744/2009

Civil Appeal No. 37 45/2009

Civil Appeal No. 3747/2009 B

- ~ Civil Appeal No. 3748/2009

Civil Appeal No. 3749/2009

Civil Appeal No. 3750/2009 c
Civil Appeal No. 3751/2009
"' Civil Appeal No. 3752/2009

Civil Appeal No. 3753/2009 D

Civil Appeal No. 3754/2009

Civil Appeal No. 3757/2009
Civil Appeal No. 3758/2009 E

Civil Appeal No . 3759/2009
•
Civil Appeal No. 3760/2009

Civil Appeal No. 3761/2009 F

Civil Appeal No. 3762/2009

Civil Appeal No. 3763/2009

.... _,
1
Civil Appeal No .. 3764/2009

Civil Appeal No. 3765/2009
G

Civil Appeal No. 3766/2009
H
1022 SUPREME COURT REPORTS [2009] 8 S.C.R.

A Civil Appeal No. 3767/2009
.,
Civil Appeal No. 3768/2009

Civil Appeal No. 3769/2009

B Civil Appeal No. 3770/2009
Civil Appeal No. 3771/2009 r
----
Civil Appeal No. 3772/2009

c Civil Appeal No. 3773/2009
Civil Appeal No. 3774/2009

Civil Appeal No. 3775/2009
-
.~
D Civil Appeal No. 3776/2009
Civil Appeal No. 3777/2009

T.P. (C) No. 198/2006

E T.P. (C) No. 195/2006
T.P. (C) No. 200/2006

T.P. (C) No. 196/2006

F Civil Appeal No. 3778/2009
Civil Appeal No. 3779/2009

Civil Appeal No. 3780/2009

G Civil Appeal No. 3781/2009
..--
Civil Appeal No. 3782/2009

Civil Appeal No. 3783/2009

H
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1023
NARAIN CHATURVEDI
. Civil Appeal No. 3784/2009 A

Civil Appeal No. 3785/2009

Civil Appeal No. 3786/2009

Civil Appeal No. 3787/2009 B

~
., Civil Appeal No. 3788/2009

Civil Appeal No. 3789/2009

Civil Appeal No. 3790/2009 c
.. Civil Appeal No. 3791/2009

Civil Appeal No. 3792/2009

Civil Appeal No. 3793/2009 D

Civil Appeal No. 3794/2009

Civil Appeal No. 3795/2009

Civil Appeal No. 3796/2009 E
T.P.(C) No. 64/2006

' - Civil Appeal No. 3797/2009

Civil Appeal No. 3798/2009 F
Civil Appeal No. 3799/2009

Civil Appeal No. 3800/2009

Civil Appeal No. 3801/2009 G.
,. ...
Civil Appeal No. 3802/2009

Civil Appeal No. 3803/2009

H
1024 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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

c Civil Appeal No. 3810/2009
Civil Appeal No. 3811/2009 ..
Civil Appeal No. 3812/2009

D Civil Appeal No. 3813/2009
Civil Appeal No. 3814/2009

Civil Appeal No. 3815/2009

E Civil Appeal No. 3816/2009
Civil Appeal No. 3817/2009

Civil Appeal No. 3818/2009

F Civil Appeal No. 3819/2009
Civil Appeal No. 3820/2009

Civil Appeal No. 3821/2009

G Civil Appeal No. 3827/2009
r ...
Civil Appeal No. 383112009

Civil Appeal No. 3832/2009

IH Civil Appeal No. 3833/2009
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1025
NARAIN CHATURVEDI

Civil Appeal No. 3834/2009 A
).

Civil Appeal No. 3835/2009

Civil Appeal No. 3836/2009

Civil Appeal No. 3837/2009 B

Civil Appeal No. 3838/2009
• " Civil Appeal No. 3839/2009

Civil Appeal No. 3840/2009 c
Civil Appeal No. 3841/2009

Civil Appeal No. 3842/2009

Civil Appeal No. 3843/2009 D
-
Civil Appeal No. 3844/2009

Civil Appeal No. 3845/2009

Civil Appeal No. 3846/2009 E

Civil Appeal No. 3847/2009

Civil Appeal No. 3848/2009

Civil Appeal No. 3849/2009 F

Civil Appeal No. 3856/2009

Civil Appeal No. 3850/2009

Civil Appeal No. 3851/2009 G

... -. Civil Appeal No. 3852/2009

-
,<
Civil Appeal No. 3853/2009

. Civil Appeal No. 3854/2009 H
1026 SUPREME COURT REPORTS [2009) 8 S.C.R.

A Civil Appeal No. 3855/2009 ~
~

Civil Appeal No. 3933/2009.

P.P. Rao, V. Shekhar, M.S. Nargolkar, S.K. Kesliote,
Manish Kumar, Rakesh Kumar, Amit Chaudhary, Majid Ali
B Khan, Ansar Ahmad Chaudhary, Milind Kumar (for Aruneshwar
Gupta, AAG) Kumar Kartikay, Ranvijay, Neelu Sharma,
Jatinder Kumar Bhatia, Sushi! Kr. Jain, Archana Tiwari, B.D.
Sharma, Shantanu Bhardwaj, M. lndrani, Indra Makwana, L.K. " •
Pandey, Mohan Pandey, Ravindra Rana, Bhupendra Yadav,
c R.C. Kohli, Manu Mridul, Pranav Vyas, Anat Vats, Surya Kant,
K.L. Janjani, Dr. Vinod Tiwari, Pankaj Kr. Singh, V.K. Mathur,
Respondent-In-Person, Rekha Pandey, Anil Nag, Naresh
Kumar, Amey Nargolkar, D.M. Nargolkar, Dhiraj Saumi, Balraj
Dewan, Dr. Manish Singhvi, P.V. Yogeswaran, K. Sarada Devi,
D K. Vijayan, Debasis Misra, Akhilesh Kumar Pandey, Shalini
Chandra, B.K. Satija, Varinder Kumar Sharma, Ajit kumar •
Pande, Pradeep Kumar Yadav, Kamal Mohan Gupta Jatin
Zaveri, Ajay Choudhary, Ram Babu, Ravi Shankar Dwivedi,
Anoop Kr. Srivastava, Rakesh Kr. Khare, Mukesh Sharma,
E Rameshwar Prasad Goyal, Kuldip Singh, R.K. Pandey, T.P.
Mishra, H.S. Sandhu, R.K. Gupta, S.K. Gupta, Shekhar Kumar,
Puneet Jain A.V. Kotenath, Pratibha Jain, Rishi Malhotra,
Satish Chand Gupta, Lakshmi Arvind, Poonam Prasad,
Shakeel Ahmad, A. lntizar, Aribam Guneshwar Sharma, Narhari
F Singh, Amit Bhardari, Vikas Mehta, Gaurav Agrawal, Sarad
Kumar Singhania, Rashmi Singhania H.D. Thanvi, Aishwarya
Bhati, Himanshu Singh, Gp. Capt. Karan Singh Bhati, Rekha
Giri and Sweta Rani for the Appearing parties.

The Judgment of the Court was delivered by
G
DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. In these cases the State of Rajasthan had questioned
correctness of the judgment rendered by different benches of
t
-. ~·

the Rajasthan High Court allowing the Writ Petitions filed by the
H
J
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1027
NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]

n~spondent in each case. The basic issue was whether ad hoc A
~
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
dated 17.2.1998. It is the stand of the appellants that they are B
not, while the respondents contend to the contrary. The cases
at hand relate to the appointments made under the Rajasthan
~
l" Subordinate Offices Ministerial Staff Rules, 1957 (in short the
'Ministerial Staff Rules'), the Rajasthan Engineering
Subordinate Service (Irrigation Branch) Rules, 1967 (in short c
the 'Irrigation Branch Rules'), the Work Charged Employees
Services Rules, 1964 (in short Work Charged Rules), the
~
Rajasthan Agricultural Subordinate Service Rules,. 1978 (in
short the 'Subordinate Rules'), the Rajasthan Forest
Subordinate Service Rules, 1963 (in short the 'Forest
. Subordinate Rules'), Rajasthan Panchayat Samiti and Zila
D

Parishad Service Rules, 1959 (in short the 'Panchayat Service
Rules') and the Rajasthan Secretariat Ministerial Service Rules,
1970 (in short the 'Ministerial Service Rules').

3. Stand of the appellants essentially is that the stagnation E
bEmefits are given from the date of regularization. It is submitted
that this question has been decided in State of Haryana v.
Haryana Veterinary & AHTS Association and Anr. (2000 (8)
SCC 4). It is the stand of the State that the stagnation benefits
are given since chance of promotion is not there. There is no F
question of any regularization if the proficiency test is not
passed. Circulars relied upon by the employees refer to regular
se,rvice.

4. In the Notification dated 29.3.1995 paras 3, 4 and 5 are
G
of relevance. Para 3 refers to regular service while para 4
,, i states about 10% of benefit to 10% to all the eligible
employees and para 5 is the most crucial as it relates to the
benefit being given after regular appointment. Initially, the period
fixed was 15 years, later it was made to three different periods
H

--(
,.

1028 SUPREME COURT RE.PORTS (2009) 8 S.C.R.

A of 9 years, 18 years and 27 years. Subsequent Notification is ;
dated 25.1.1992 which talks of promotion. Obviously, the
promotion has to be from the existing cadre in service.

5. Stand of the appellants is that the appointments can be
relatable to the existing cadre/service and in case of ad hoc
B
and work charge service there is no reference to any cadre.
The recruitment rules specifically refer to existing cadre/service.
,.,
This position is clarified by a Notification dated 3.4.1993. The ~

crucial paragraph is para 3 which speaks of action being taken
c in17.2.1998,
accordance with the recruitment rules. By a. Notification of
all previous orders were superseded.

6. Stand of the appellants in essence is that the High Court
confused reflular appointment made to the cadre/service with ...-.
appointment to the post. It is also submitted that if there was
D no regularization there was no scope for any promotion. With
reference to Rule 25(4) it is submitted that the same relates to
prospective employment as is evident from the expression
"occurrence of vacancy". Starting point therefore is when the
employee is born in the cadre/service. Ad hoc employees had
E no right to the post.
7. It is submitted that though reference was made to 1992
circular the same was misread. Since it was a wrong decision
there is no question of any negative equality.
F 8. Learned counsel for the respondent in each case on the
other hand submitted that similar issues were decided earlier
and the special leave petitions had been dismissed. Further,
in the case of LDCs also, the State did not question the
correctness of the decision.
G
9. A few provisions of the Rajasthan Absorption of Surplus
t ...,
Personnel Rules, 1969 (in short the 'Rules') need to be noted.

10. Rule 3(a) refers to ad hoc appointment and reads as
follows:
H

,
"'.-
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1029
NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]

"Ad hoc appointment means temporary appointment A
made without selection "of the candidate by any of the
methods of recruitment provided under the relevant
service rules, or any orders of Government where no
service rules exist and otherwise than on the
recommendation of the Commission if the post is in its. B
purview."

11. It needs to be noted that there is no scope for raising
an issue that executive instructions can override the rules. The
law is to the contrary. The Notification dated 3.4.1993 speaks
of "in accordance with recruitment rules". Clarification was C
necessary because. of doubts regarding regular appointment.
It is made clear that the period rendered in the existing cadre
before regular employment in accordance -with the relevant
recruitment rules to the post is because of change of cadre the
previous period is not counted s6 there is no question of giving D
the benefit to ad hoc employees and the appointment letters ·
which were illustratively filed indicate that the appointments
were till regular appointment was made. Ad hoc appointment
is not made in terms of the requirements of the rules. The
benefit is extended to avoid stagnation. In case of ad hoc E
employees, stagnation is till the regularization is made. The
.. str,ess in the present case is on regular appointment to cadre/
service. As rightly contended by learned counsel for the State,
tho High Court confused itself with appointment to post. The
question of promotion arises only when appointment is a regular F
appointment. Appointment to the post is not relevant; on the
other hand, what is relevant is the period relatable to the cadre
of the service.

12. Rule 25(4) relates to prospective appo;ntment as is G
clear from the expression 'occurrence'. Therefore, the starting
point has to be as noted above, when the employee is born in
the cadre, as observed by this Court in Dr. Chancha/ Goyal
(Mrs.) v. State of Rajasthan (2003 (3) SCC 485), Santosh
Kumar and Ors. v. G. R. Chawla and others (2003 (10) sec H
1030 SUPREME COURT REPORTS (2009] 8 S.C.R.

A 513) and A.G. Sainath Reddy v. Govt. of A.P. & Ors. (2003
(4) SCC 625). Ad hoc employee has no right to the post and
ad hoc appointment does not count for the purpose of seniority.

13. The High Court has referred to the cases of the LDCs.
It is clear on reading of the decision of the High Court that
B
though the same was decided on the factual background of
1992 circular it mis-construed the same. Wrong decision does
not create a right. There is no question of negative equality. y
1
(See Indian Cquncil of Agricultural Research & Anr. v. T.K.
Suryanarayan & Ors. (1997 (6) SCC 766), Gursharan Singh
c and Ors. v. New Delhi Municipal Committee and Ors. (1996
(2) SCC 459) and Chandigarh Administration and Anr. V.
Jagjit Singh and Anr. (1995 (1) SCC 745). Methods of
recruitment are in Rule 5. The standard procedure is contained
in Rules 16 and 17. Rule 22 refers to the recommendation and
D Rule 23 relates to the appointment to the service. Rule 23
speaks of deemed regularization and after 7.11.1975
procedure has to be followed. Sub-Rule (9) is of considerable
importance. It speaks of appointment on regular basis on
availability of vacancy, the requirement to pass a performance
E test and the number of chances given for such post. Rule 27
speaks of appointment to the service. Rule 28 speaks of urgent
temporary appointment when no post be filled up by direct
recruitment or by promotion immediately. There is no
conceptual difference between the two. The High Court has
F equated them. The Haryana Veterinary case (supra) has been
distinguished by the High Court saying that the appointment in
this case was not de hors by relying of Rule 28. The decision
is fundamentally wrong because the conceptual difference
between Rule 23 and Rule 28 has been lost sight of. In paras
G 7, 9, 10, 11 and 12 of the Haryana case it has been observed
as follows:
"7. Corning to the circular dated 2-6-1989, issued by the
i
---
Financial Commissioner and Secretary to the Government
of Haryana, Finance Department, it appears that the
H
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1031
NAR:AIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]

~
aforesaid circular had been issued for removal of A
anomalies in the pay scale of Doctors, Deputy
Superintendents and Engineers, and so far as Engineers
are concerned, which are in Class I and Class II, it was
unequivocally indicated that the revised pay scale of
Rs 3000 to Rs 4500 can be given after completion of 5 B
years of regular service and Rs 4100 to Rs 5300 after
completion of 12 years of regular service. The said
• ~
Financial Commissioner had issued yet another circular
dated 16-5-1990, in view of certain demands made by
officers of different departments. The aforesaid circular c
was issued after reconsideration by the Government
, modifying to some extent the earlier circular of 2-6-1989,
and even in this circular it was categorically indicated that
so far as Engineers are concerned, they would get
Rs 3000 to 4500 after 5 years of regular and satisfactory
D
service and selection grade in the scale of pay of Rs
4100 to Rs 5300, which is limited to the extent of 20% of
the cadre post should be given after 12 years of regular
and satisfactory service. The aforesaid two circulars are
unambiguous and unequivocally indicate that a government
serv.ant would be entitled to the higher scale indicated E
!herein only on completion of 5 years or 12 years of regular
i>ervice and further the number of persons to be entitled
~o <get the selection grade is limited to 20% of the cadre
post. This being the position, we fail to understand how
services rendered by Rakesh Kumar from 1980 to 1982, F
which was purely on ad hoc basis, and was not in
accordance with the statutory rules can be taken into
account for computation of ti1e period of 12 years indicated
in the circular. The majority judgment of the High Court
committed serious error by equating expression "regular G·
.·-" > 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 H
1032 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
c 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
D 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
E
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
F 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.

G 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.
H
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1033
NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]
.~ 12. Under Rule 8 appointment to the service has to be A
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."
B
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:
c
....,...,,.
"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 D
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 E
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 F
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 petitioners-
respondents the initial appointment was a substantive G
, ~
·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
H
1034 SUPREME COURT REPOR-1 S (2009) 8 S.C.R.

A 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
B 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
c 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".
D 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
E 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
F 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
G 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
H
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1035
NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]

scale the appointment mentioned there is obviously a need for A
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 B
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 C
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 D
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 E
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 F
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 G
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:
H
1036 SUPREME COURT REPORTS [2009) 8 S.C.R.

A 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
B
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
c 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.

D (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
E
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-
F 1172, dated 7.11.1975 published in the Rajas than 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
G 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
H
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1037
NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]

of pay and allowances in lieu thereof if they have served A

-- 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 B
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.
D
(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
E
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
F
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
G

(ii) by allowing procedure as laid down in Rajasthan Civil
H
1038 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
B
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
c 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
D 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,
E
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
F 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
G 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;
H
,,_ STATE OF RAJASTHAN AND ORS. v. JAGDlSH 1039
NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]

~ Provided that if a person fails to pass the said test A

- 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.
B
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 c
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 a
performance test conducted by the Appointing Authority D
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;
E
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 F
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. G
... ~
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
H
1040 SUPREME COURT REPORTS [2009] 8 S.C.R. '""'

A 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
B 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
c 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
D 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
E 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.
F (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
G 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."
H
STATE OF RAJASTHAN AND ORS. v. JAGDISH 1041
NARAIN CHATURVEDI [DR. ARIJIT PASAYAT, J.]

-~ 21. The High Court failed to appreciate that the A
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.
B
22. So far as the dismissal of some special leave petitions

... J.
summarily it is made clear that, it does not affect 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. (See Prabhakar Rao v. State of A.P. (1985 Supp 2
c
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). D

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 E
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 F
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
G

-
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 H
1042 SUPREME COURT REPORTS [2009] 8 S.C.R

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.

G.N.
26. Appeal is disposed of.

Appeals and transfer petitions disposed of.
.
-

~ -