STATE OF TAMIL NADU AND ANR. ETC.versusE. PARIPOORNAM AND ORS.

              STATE OF TAMIL NADU AND ANR. ETC.
A
                              v.
                   E. PARIPOORNAM AND ORS.

                              AUGUST 19, 1991

B       [K. JAGANNATHA SHETTY, V. RAMASWAMI AND
                  YOGESHWAR DAYAL, JJ.]

           Tamil Nadu State and Subordinate Services Rules, 1955-Rules
    35( 1), lO(a)(i)( 1), 22, 23(a)-lnter-se seniority-Determination--
    Temporary s.ervice-Whether counted.

          Civil Service-Inter-se seniority-Determination-Temporary
    service-Whether counted.

         Tamil Nadu State and Subordinate Services Rules, 1955-Rules
    lO(a)(i)( l), 23(a)-Temporary service-Benefits available indicated.
D
          The Government appointed temporary junior professors in diffe-
    rent law colleges in the State under Rule lO(a)(i)(I) of the Tamil Nadu
    State and Subordinate Services Rules, 1955during1971-1982.

           In 1979 the State Public Service Commission invited applications
E   for regular appointment of junior professors. The temporary junior
    professors and others applied for the posts. The Commission selected 25
    candidates out of whom 21 were already working as temporary junior
    professors. On 16.8.1983, the selected candidates were arranged in the
    list called "approved list" in the order o~ merit prepared by the Com-
    mission which was approved by the Government on 9.12.1983.
F
          On 27.6.1985 the State Government regularised the services of the
    21 junior professors with effect from the dates of original appointments
    as temporary junior professors.

          Some of the junior professors were promoted on 10.9.1986 and
G   appointed as professors. The respondents challenged that promotion
    before the High Court contending that once the temporary services
    were regularised retrospectively with effect from the date of entry in the   t
    service, the seniority should be reckoned by giving the benefit of
    regularised service notwithstanding the ranking in the approved list.

H         The High Court allowing the writ petitions directed the Govern-

                                      618
              STATE OF TAMIL NADU v. E. PARJPOORNAM                     619

 ment to make a proper order of promotion In the light of the views
                                                                               A
 expressed in the judgment, against which appeals were made In this
 Court.

       Allowing the appeals, this Court,

        HELD: 1. The order of regularisation of the services of the candi-     8
  dates expressly states that the inter-se seniority of the candidates would
  be in accordance with the rankings in the approved list prepared by the
. Public Service Commission and will not be affected in any way by the
  date of regularisation of services. When the order of regularisation of
  temporary service itself denies such service for the purpose of determln·
  ing seniority, the Court cannot rouut that service for the purpose of
  seniority. [625B-C]                                                          C

       2. Since the parties in these cases appeared for selection before
 the Public Service Commission for regular recruitment as junior profes-
 sors, the list of approved candidates prepared by the Public Service
 Commission in the order of merit and accepted by the Government               D
 should be the basis for the determining inter-se seniority. It is not open
 to the parties to claim that their temporary service as junior professors
 upon regularisation should be counted for the purpose of determining
 the seniority in the cadre. [625D-E]

       3. Rule IO(a)(i)(l) provides for making of temporary appoint-           E
                                                                                   1
 ments. Such appointments are made otherwise than In accordance with
 the procedure prescribed under the Rules. [625H-626A]

       4. In the instant case, the respondents were appointed tempora-
 rily and otherwise than in accordance with the Rules. They were later
 selected along with others for direct recruitment by the. Public Service F
 Commission. They were not entitled to count the temporary service for
 seniority. The services rented by the applicants under Rule lO(a)(i)(l)
 cannot be considered for the purpose of seniority as such appointment is
 a matter of stop-gap, emergency or fortuitous arrangement. Even
 though their temporary services have been regularised, since regulari-
 sation was only for limited purposes. [626A-C]                           G

        A.P.M. Mayakutty etc. v. Secretary, Public Service Department
 etc., [1977] 2 SCR 937 at 942, followed.

       5. The services rendered in the temporary post is available either
 for earning increments or for commencement of probation. [625E-F]             H
    620                   SUPREME COURT REPORTS             [1991] 3 S.C.R.

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
A
    1339-40 of 1988.

         From the judgment dated 7.7.1987 of the Madras High Court in
    W.P. Nos. 9781and10545of1986.

B         G.L. Sanghi, P.P. Rao, R. Mohan, R. Perumal, V. Krishna-
    murthy, M.N. Krishnamani, V. Sekhar, K.V. Vishwanathan, T. Raja,
    S.R. Setia, P. Chaudhary, A. Mariarputham and M.A. Krishnamurthy
    for the appearing parties.

          The Judgment of the Court was delivered by
c         K. JAGANNATHA SHETTY, J. Jn these appeals by special
    leave, the legality of the judgment of the Madras High Court dated 7
    July 1987 quashing the promotions made to the cadre of professors in
    law colleges in the State of Tamil Nadu has been called into question.

D          The appeals arise in the following circumstances: During the
    period from 1971 to 1982 the Government appointed temporary junior
    professors in different law colleges in the State. The appointments
    were made under Rule !O(a)(i)(l) of the Tamil Nadu State and Subor-
    dinate Services Rules, 1955 (Viz. The Preliminary and The General
    Rules) (hereinafter called 'the Rules'). In 1979 the State Public
E   Service Commission invited applications for regular appointment of
    junior professors. The temporary junior professors and others applied
    for the posts. The Public Service Commission selected 25 candidates
    out of whom 21 were already working as temporary junior professors.
    The selected candidates were arranged in the list called "approved           -'- .-
    list" in the order of merit. The list was prepared by the Public Service
F   Commission on 16 August 1983. It was approved by the Government
    on 9 December 1983. On 27 June 1985 the State Government made an
    order regularising the services of those 21 junior professors. Their
    services were regularised with effect from the dates of original
    appointments as temporary junior professors.

G         On 10 September 1986 some of the junior professors were pro-
    moted and appointed as professors in the law colleges. That promotion
    was challenged before the Madras High Court on the ground that the
    claim of the seniors has been overlooked. It was urged before the High
    Court that once the temporary services have been regularised retros-
    pectively with effect from the date of entry in the service, the seniority
H   should be reckoned by giving the benefit of regularised service
          STATE OF TAMIL NADU v. E. PARIPOORNAM [SHETTY. J.[            621


    notwithstanding the ranking in the approved list prepared by the
                                                                               A
    Public Service Commission. The High Court accepted that plea and
    queshed the promotion of professors and directe~ the Government to
l   make a proper order of promotion in the light of the views expressed in
    the judgment.

          The correctness of the judgment of the High Court has been           B
    assailed in these appeals. We must first outline the necessary statutory
    provisions bearing on the question raised.

         Section lO(a)(i)( 1) provides as follows:

               "10. Temporary appointments:
                                                                               c
               (a)(i)(l) Where it is necessary in the public interest owing
               to an emergency which has arisen to fill immediately a
               vacancy in a post borne on the cadre of a service, class or
               category and there would be undue delay in making such
               appointment in accordance with these rules and the Special      D
               Rules, the appointing authority may temporarily appoint a
               person, otherwise than in accordance with the said rules.

         Rule 22 so far as relevant reads:

               "Reservation of Appointments-Where the Special Rules            E
               lay down that the principle of reservation of appointments
               sh.all apply to any service, class or category, selection for
               appointment thereto shall, with effect on aJd from the 7th
               June 1971, in cases such selection is made by the Commis-
               sion, and 8th November 1971, in other cases, be made on
               the following basis-                                            )\:

               (a) The unit of selection for appointment, for the purpose
               of this rule, shall be one hundred, of which eighteen shall
               be reserved for the Scheduled Castes and the Scheduled
               Tribes and thirty-one shall be reserved for the Backward
               Classes and the remaining fifty-one shall be filled on the . G
               basis of merit.

               (b) The claims of members of the Scheduled Castes and
               the Scheduled Tribes
                               #
                                     and the Backward• Classes shall
                                                                 •
                                                                     also
               be conside;:frifor the fifty-one appointments, which shall
               be filled o; the basis of merit; and where a candidate · H


                          r
                          •
    622                    SUPREME COURT REPORTS             [ 1991] 3 S.C.R.

                belonging to a Scheduled Caste, Scheduled Tribe or Back·
A
                ward Class is selected on the basis of merit, the number of
                posts reserved for the Scheduled Castes and the Scheduled
                Tribes or fcir the Backward Classes, as the case may be,
                shall not in any way be affected.

B                                   xxxxx       xxxxx     xxxxx

          Rule 23, so far as material, is as follows:

                 "23(a)(i) Date of commencement of probation of persons
                 first appointment temporarily-If a person appointed tern·
                 porarily either under sub-rule (a) or sub-rule (d) of rule 10
c                to fill a vacancy in any service, class or category otherwise
                 than in accordance with the rules governing appointment
                 thereto, such vacancy being a vacancy which may be filled
                 by direct recruitment, is subsequently appointed to the
                 service, ·class or category in accordance with the rules, he
D              ·shall commence his probation, if any, in such category
                ·either from the date of his first temporary appointment or
                 from such subsequent date, as the appointing authority
                 may determine.

                      xxxxx       xxxxx        xxxxx
E
                Provided that on the date so determined, the pe'rson pos·
                SYs~es all the qualifications prescribed for appointment to
                the service, class or category, as the case may be.
                                                                                 )•
                (ii) A person who commences probation under clause (i)
F               shall also be eligible to draw increments in the time scale of
                pay applicable to him from the date of commencement of
                his probation. Where commencement of probation is
                ordered from a date earlier than the date of the order and if
                this has not been enabled by relaxation of any rule, he shall
                draw increments, including arrears, in the time-scale of pay
G               applicable to him from such earlier date. The appointing
                authority shall include a provision to this effect while issu·
                ing orders in all such cases.

          Rule 35 omitting immaterial words, is in these terms:

H               "35{a) The seniority of a person in a service, class or cate·
         STATE OF TAMIL NADU v. E. PARIPOORNAM [SHETTY, J.}            623

               gory or grade shall unless he has been reduced to a lower      A
               rank as a punishment, be determined by the rank obtained
               by him in the list of approved candidates drawn up by the
               T.N.P.S.C. or other appointing authority, as the case may
               be, subject to the rule of reservation where it applies. The
               date of commencement of his probation shall be the date
               on which he joins duty irrespective of his seniority."         a
          It is under these R.ules the Public Service Commission invited
    applications for selecting candidates for direct recruitment to the cadre
    of Assistant Professors in Law. The Public Service Commission pre-
'   pared the list of selected candidates by following the reservation pro-
    vided under rule 22. The list was approved by the State Government. C
    Rule 35(a) states that seniority of a person be determined by the rank
    obt.ained by him in the list of approved candidates drawn by the Public
    Service Commission subject to rule of reservation where it applies.

          The contention urged for the respondents, is that since their
    temporary service as junior professors were regularised, the regula- D
    rised service should count for the purpose of determining their senio-
    rity and not the rankings in the select list approved by the Govern-
    ment. We find little substance in it. The order of regularisation is in
    these terms:

               "ORDER                                   DATED 27.6.1985 E

                     In G.O. Ms. No. 2288 Education dat.ed 9.12.1983 the
               Government approved the selection made by the Tamil
               Nadu Public Service Commission of the 25 candidates
               mentioned therein for appointment by direct recruitment
               as Junior Professor in the Tamil Nadu Legal Educational F
               Service. These 25 candidates were appointed temporarily
               as from their taking charge in G.O. Ms. No. 897 Education
               dated 11.7.1984.

               2. The Government have however, decided to appoint
               them regularly with effect from the dates on which they G
               were declared fully qualified to hold the post of Junior
               Professor in the Law Colleges in Tamil Nadu prior to their
               selection by the Tamil Public Service Commission and
               appointment as Junior Professors in Law Colleges with
               reference to their selection. The Government accordingly
               direct that the services of the 21 individuals mentioned in H
    624                    SUPREME COURT REPORTS             [1991] 3 S.C.R.

                the Annexure to this order as Junior Professors in the
A
                Tamil Nadu Legal Educational Service, be regularised with
                retrospective effect from the dates noted against them.
                                                                                 .\
                3. The inter-se seniority of the 21 candidates indicated in
              · the annexure is in accordance with the seniority fixed by
B               the Tamil Nadu Public Service Commission. The inter-se
                seniority position will not be affected in any way with refe-
                rence to the dates of regularisation mentioned in column 3
                of the annexure.

                4. Under Rule 23(a)(ii) of the General Rules for State and
                Subordinate Services, the incumbents are eligible for incre-
c               ments from the date of their regularisation as they are fully
                qualified to hold the post on that date. The increments
                already sanctioned to them, for their services as temporary
                junior professors prior to regular appointment, is ratified.

D                                    xxxxx       xxxxx''

          The first paragraph of the order refers to the selection of 25
    candidates by the Public Service Commission for appointment as
    Junior Professors in the law colleges and their appointment with effect
    from their taking charges. The second paragraph of the order deals
E   with the regularisation of the services of 21 candidates out of 25
    appointed. The Government directed that the services of the 21 Junior
    Professors specified in the order be regularised with retrospective
    effect from the date noted against them. In the third paragraph it is
    stated that the inter-se seniority of the 21 candidates is in accordance
    with the seniority fixed by the Public Service Commission and the
F   inter-se seniority position will not be affected in any way with reference
    to the dates of regularisation of their services. The paragraph four of
    the order deals with the rights of the candidates to draw increments
    under rule 23(a)(ii) in the service rendered as temporary Junior
    Professors.

G         The High Court has stated that Rule 35(a) could not have been
    properly invoked by the State Government after the regularisation of
    the services of the candidates and it would be against the very concept
    of order of regularisation. It has been pointed out that by regularisa-
    tion the period of temporary service has been converted i.nto a period
    of regular service and a deeming fiction is introduced that the candi-
H   dates whose services have been regularised retrospectively must be
      STATE OF TAMIL NADU v. E. PARIPOORNAM [SHETTY, J.]             625

treated for all purposes as being in regular service from the respective     A
dates of regularisation.
               '
      In our opinion,   the view expressed by the High Court not only
runs counter to the terms of the order of the regularisation but also is
inconsistent with statutory principle of determining seniority under
Rule 35(a). In the first place the order of regularisation of the services   B
of the candidates expressly states that the inter se seniority of the
candidates would be in accordance with the rankings in the approved
list prepared by the Public Service Commission and will not be
affected in any way by the date of regularisation of services. When the
order of regularisation of temporary service itself denies such service
for the purpose of determining seniority, the Court cannot count that        C
service for the purpose of seniority. Secondly, Rule 35(a) provides for
determining the inter-se seniority of the candidates selected by the
Public Service Commission. It states that the seniority of a person in a
service, dass or category or trade shall be determined unless he has
                                  a
been reduced to a lower rank as punishment, by the rank obtained by
him in the list of approved candidates drawn by the Public Service           D
Commission or other appointing authority as the case may be. Since
the parties in these cases appeared for selection before the Public
Service Commission for regular recruitment as Junior Professors, the
list of approved candidates prepared by the Public Service Commis-
sion in the order of merit and accepted by the Government should be
the basis for determining their inter-se seniority. It is not open to the    E
parties to claim that their temporary service.as Junior Professors upon
regularisation should be counted for the purpose of determining the
seniority in the cadre. There is no rule supporting such contention.
The services rendered in the temporary post is availa):ile either for
earning increments or for commencement of probation. That would be
clear froJ11 Rule 23(a). Consistent with the Rule 23(a), the Govern-         F
 ment in the order of regularisation has directed that the incumbents
are eligible for increments from the date of their regularisation as they
are fully qualified to hold the post on that date. The increments
already sanctioned to them during their services as temporary Junior
 Professors prior to regular appointment has been ratified by the said
order. The High Court was plainly in error in ignoring the statutory Rules   G
 and the terms and conditions of the order of regularisation.of services.

     Apart from that, Rule lO(a)(i)(l) provides for making of
temporary appointments when it is necessary in the public interest to
do so owing to an emergency which has arisen for filling a vacancy
immediately. Such appointments are made otherwise than in accor-             H
    626                   SUPREME COURT REPORTS           [1991] 3 S.C.R.

A   dance with the procedure prescribed under the Rules. In the instant
    case the respondents were appointed temporarily and otherwise than
    in accordance with the Rules. They were later selected along with
    others for direct recruitment by the Public Servic.e Commission. They
    were not entitled to count their temporary service for seniority. In
    A.P.M. Mayakutty etc. v. Secretary, Public Service Department etc.,
B
    [ 1977j 2 SCR 937 at 942 this Court observed that the services rendered
    by the applicants under Rule !O(a)(i)(l) cannot be considered for the
    purpose of seniority as such appointment is a matter of stop-gap,
    emergency or fortuitous arrangement. The present case cannot be an
    exception to this principle even though their temporary services have
    heen regularised, since regularisation was only for limited purposes.
                                                                              ...
c
          In any view of the matter the decision of the High Court cannot
    be sustained.

           In the result the appeals are allowed and the impugned judgment
    is set asidewith no order as to-costs.

    V.P.R.                                               Appeals allowed.      ~.