Holding

The blanket regularisation of ad‑hoc promotions without PSC consultation and in violation of the quota rule is invalid; ad‑hoc service can be regularised only after PSC approval and only for periods within the promotee quota, with seniority fixed from the date of a clear vacancy.

Summary

The case concerned the regularisation of a large number of Assistant Engineers and Assistant Executive Engineers in the Electrical Wing of Jammu & Kashmir who had been appointed on an ad‑hoc basis for periods exceeding six months without consulting the Jammu & Kashmir Public Service Commission (PSC). The State Government had issued an order on 2 January 1998 that retrospectively regularised these promotions and granted seniority, allegedly violating the recruitment quota and the requirement of PSC consultation. The Supreme Court examined whether the Government could relax recruitment rules, whether the quota rule had broken down, and whether ad‑hoc service could be regularised under Rule 23 of the J&K Classification Control and Appeals Rules. It held that the wholesale regularisation was invalid because it bypassed the quota rule and the PSC, and that Rule 5 could not be interpreted to relax recruitment rules. The Court clarified that ad‑hoc service beyond six months can be regularised only after PSC consultation and only for service rendered within the promotee quota, with seniority counted from the date of a clear vacancy. It directed the PSC and the Government to complete regularisation and issue fresh seniority lists, while staying further promotions until then.

Issues considered

The power of the Government to appoint officers on promotion temporarily for more than six months without PSC consultation.
Whether the State could regularise ad‑hoc promotions by implied relaxation of recruitment rules.
Whether the quota rule between direct recruitment and promotion had broken down and whether a rota rule applies.
Whether ad‑hoc/stop‑gap service beyond six months can be regularised and counted for seniority.
Whether direct recruits can claim seniority from the date of vacancy in their quota.

Legislation cited

Constitution of Jammu & Kashmirs. Section 133

Subjects

service lawad‑hoc promotionseniorityquota rulepublic service commissionregularisationrelaxation of rulesJammu & Kashmir service rules

Judgment

SURAJ PARKASH GUPTA AND OTHERS A
• )T v.
STATE OF J & K AND OTHERS

APRIL 28, 2000

[M. JAGANNADHARAO AND A.P. MISRA. JJ.] B

Service Law :
J & K (Classification Control and Appeals) Rules 1956-Rules 5 & 23-
J & K Engineering (Gazetted) Service Recruitment Rules, 1978-Rule 5(4)-
J & KPublicService Commission(Iimitation offunctions) Regulations, 1957- c
Regulation 4( d)(ii)-Appointment-To the post ofAssistant Engineers-On ad
hoc promotion for a period more than six months without consulting Public
Service Commission-Regularisation thereof-By relaxing recruitment rules-
~ And granting them, seniority within their quota as well as from the quota of
direct recruits~Delayed recruitment of direct recruits-No evidence that suit- D
able candi.dates were not available for direct recruitment-Held, The wholesale
regularisation by way of implied relaxation of the recruitment rule to the
g<JQ!tted category is invalid as it has been done without following the quota rule
and without consulting the Service Commission-Power under rule 5 to relax
rules cannot be treated as wide enough to include a power to relax rule of
~ E
recruitment-The ad hodstop gap service of the promotees cannot be treated
as non-est merely because P.S.C. was not consulted in respect of continuance
of the ad hodstop gap service beyond six months-Such service is capable of
being regularised under Rule 23, and rectified with retrospective effect from the
date of occurrence of a clear vacancy in the promotion quota, subject to
eligibility, fitness and other relevant factors-Service outside promotee quota F
cannot count for seniority-1.n Service Jurisprudence, a direct recniit can claim
·-t
seniority only from the date of his regular appointment-He cannot claim
seniority from a date when he was not born in the service-Constitution of
Jammu and Kashmir-Section 133.

The present appeals raise the question whether the Government has G
power to appoint officers on promotion temporarily for a period of more
than six months without consulting Public Service Commission, to regular-
ise them and to grant them seniority within as well as outside their quota.
-
The recruitment to the posts of Assistant Engineers of all the wings
viz. Mechanical, Electrical and Civil Engineering ill the State of Jainmu & H
807
\ /
~·

808 SUPREME COURT REPORTS (2000] 3 S.C.R.
A Kashmir, as per rules was that 20 % posts were to be filled by direct
recruitment, 60% by promotion of Junior Engineers and 20% by promo-
tion of diploma holders.
The last direct recruitment in the wing was done in 1984. In 1987 in
order to remove stagnation, Government reorganised the service vide its
B orders dated 29.6.87 and 29.10.87. Thereafter vide several orders, officers
at various level were promoted to the next higher post on ad-hoc basis for
six months. Later Government issued orders continuing these ad-hoc ap-
pointmenl'i till regularisation without consultation with Public Service ):
Commission.
C On 23.11.87 Government referred the matter of direct recruitment
in respect of 10 % quota, to the State Public Service Commission. The
advertisement was issued on 3.12.87. The direct recruits applied, but were
interviewed only in 1992-93, and they were appointed on various dates in
1994 and thereafter, only after the intervention of High Court.
D Government issued seniority list. Direst recruits filed various writ
petitions challenging the ad-hoc promotion of Assistant Engineers made by
Government without consulting the Public Service Commission beyond six
months and seeking to quash the existing seniority list contending that the
· seniority list cannot show the ad-hoc promotees as seniors to direct re-
E cruits. On the other hand promotee officers filed writ petitions alleging
that the seniority list was favourable to direct recruits. ~-
During pendency of the writ petitions, Cabinet on 19.12.97 decided
that in view of Court litigation there used to be delay in finalising seniority
lists and the reference of the promotees' cases to the P.S.C./D.P.C. would
F take fairly long time to be completed. This view was supported by Law
Departments and it was decided that the only remedy was to regularise
their promotion in relaxation of rules from the date they were promoted on
ad-hoc basis against substantive vacancies without prejudice to seniority to
be fixed in accordance with rota and quota. The Government on 2.1;98,
pursuant to the Cabinet decision, regularised the ad-hoc service of all the
G promotee officers of electrical wing retrospectively as a "one time excep-
tion". The order dated 2.1.98 was also challenged by the direct recruits
alongwith other seniority lists. General Administration Department placed
the relaxation proposal before PSC/DPC in order to obtain clearance. PSC
instead of considering the proposal requested for various documents. But
H rejecting the request of the PSC the Cabinet straightaway directed relaxa-
S.P. GUPTA v. STATE 809
tion as a 'one time exception'. A
• >-
High Court, allowing the writ petitions of direct recruits, held that
the orders for ad-hoc continuance beyond six months and till regularisa-
tion, without consultation were ineffective, since as per J & K Service
Commission Regulation 4(d)(ii), officiating promotion or transfer to any
service or post should not be beyond six months, unless the Commission B
was consulted; and that quota rota rule existed. The order of blanket
regularisation of promotee Assistant Engineers dated 2.1.98 was in viola-
tion of Regulation 4(d)(ii); and that the order dated 2.1.98 could not have
the effect of regularising the entire ad-hoc service. The direct recruits
could count their seniority from the date of their substantive appointment c
"ithin their quota, and the claims of promotees whose stop gap promotion
exceeded six months should be referred to the Commission for determin-
ing their suitability.

In appeal to this Court the promotee Assistant Engineers contended
that the order dated 2.1.98 even if it be without the concurrence of the D
Commission, could be treated as one passed by the Government by impliedly
relaxing the Service Commission Regulation as the provisions of Section
133 of J & K Constitution were not mandatory, and considering the long
years of service of the promotees, it was permissible for the State to relax
'_,
the service rules; and that there was no rota and there was break down of E
J-.
quota rule. The direct recruits contended that there is no rule for com-
mencing probation retrospectively in the case of a person promoted by
transfer temporarily; and that though there is no express rota rule, the
same is to be implied and read into the quota rule, and there has been
previous practice of applying a rota; and that the entire service of the
promotee continued beyond 6 months without consulting the Commission F
be treated as non-est, and only service rendered in accordance with rules
'(
can be regularised retrospectively; and that the direct recruitment ap-

_.. pointment can be ante-dated from the date of occurrence of a vacancy in
the direct recruitment quota, even if on that date the said person was not
directly recruited. G
Disposing of the appeals, the Court

HELD : 1.1. The wholesale regularisation by order dated 2.1.1998
(for the Electrical Wing) by way of implied relaxation of the recruitment
rule to the gazetted category is invalid.. It is also bad as it has been done H
810 SUPREME COURT REPORTS [2000] 3 S.C.R.
A without following the quota rule and without consulting the Service Com-
~ .-:-
mission. Further, power under Rule 5 of the J & K CCA Rules, 1956 to
relax rules cannot be treated as wide enough to include a power to relax
rule of recruitment. [828-F]
..-
--..
G.S. I..amba v. Union of India, [1985] 2 SCC 604; Narender Chadda v.
B Union of India, [1986) 2 SCC 157; V. Sreenivasa Reddy v. Govt. of A.P.,
[1995) Suppl. 1 SCC 572 and Ashok Kumar Uppal v. State of J & K, [1998) 4
sec 179, distinguished. ~
Keshav Chandra Joshi v. Union of India, [1992) Suppl. 1 SCC 272;
c Syed Khalid Rizvi v. Union of India, [1993) Suppl. 3 SCC 575 at 603; State of
Orissa v. Sukanti Mahapatra, [1993) 2 SCC 486; D1: M.A. Haque v. Union of
India, [1993) 2 SCC 213; Jammu and Kashmir Public Service Commission v.
Dr. Narinder Mohan, [1994) 4 SCC 630; Anundhati Ajit Pargaonkar v. State
of Maharashtra, [1994) Suppl. 3 SCC 380 and Dr. Surinder Singh Jamwal
and Anr. v. State of J & K, [1996) 9 SCC 619, relied on.
D
J.C. Yadav v. State of Haryana, [1990) 2 SCC 189 and Direct Recruit
Class II Engineering Officers' Association v. State of Maharashtra, [1990) 2
sec 619, referred to.
1.2. On facts, the reason given in the Cabinet note for granting <
E relaxation are insufficient. In fact, the letter of the Commission was
_--l._

prepared to give its opinion in regard to Regularisation of such promotee
but the Government backed out when the Commission called for the
records relevant for considering suitability for regular promotion. There
can be no hardship for a person seeking appointment or promotion to go
F by the procedure prescribed therefor. The relevant recruitment rule
for promotion cannot itself be treated as one producing hardship. If such
relaxation is permitted in favour of promotees then the same yardstick
,,
may have to be applied for direct recruits. If it is to be held that
direct recruitment can also be permitted without consulting the Service
G Commission (in case it is required to be consulted), there will be total
chaos in the recruitment process and it will lead to backdoor recruitment
at the whims and fancy of Government. Such a blanket power of
relaxation of recruitment rules cannot be implied in favour of the Govern- -~
ment. [828-H; 829-A-C]

H Narender Chadda v. Union of India, [1986) 2 SCC 157, distinguished.
S.P. GUPTA v. STATE 811
Jammu & Kashmir Public Service Commission v. Narender Mohan,
., ¥'
(1994] 2 SCC 630; Dr. Surinder Singh Jamwal and Anr. v. State of J & K,
A

(1996] 9 sec 1, referred to.

-."': 1.3. In the present case the Government was merely carried away by
sympathy to the promotees. By not making direct recruitment after 1998,
by restricting direct recruits to 10% rather than permitting 20% and by B
deliberately promoting the Junior Engineers to the other 10% quota of the
direct recruits, the State Government had definitely acted in a biased
manner. There is any amount of justification for the grievance of the direct
recruits that the state had passed an omnibus order on 2.1.1998 regularis-
ing all ad-hoc promotees (Electrical Wing) without consulting the Commis- c
sion, by way of deemed relaxation, in a wholly arbitrary manner, counting
the entire ad-hoc service of promotion. (829-D]

2.1. There is no rota coupled with quota but there is only a quota
~-·
rule. On the question of hreak down of quota rule except the lethargy of
the State Government and its inaction and its not asking the Service D
Commission to make direct recruitment, no other cause is visible. The
Cabinet not only stated that because reference to PSC would take a long
time, the ad-hoc services of promotees were to be regularised. The delay on
part of the Government appears to be motivated for the purpose of block-
;
-> ing the quota of the direct recruits and giving a part of it to promotees. E
When a very belated decision was taken to make direct recruitment, the
same was restricted to 10% rather than to the statutory quota of 20%.
This attitude on the part of the State was not reasonable. Further under
Rule 5(4) of the Recruitment Rules, 1978 it is provided that in case suitable
candidates are not available for promotion, the posts shall be filled up by F
direct recruitment and vice-versa. Thus, there must he evidence that suit-
~ able candidates were "not available" for direct recruitment. Such non-
availability cannot be inferred when, as a fact, not even a reference is made

-
to the Commission to find out if upon advertisement, anybody will re-
spond. Cabinet note dated 19.12.1997 only states that cases of the ad-hoc
promotees if referred to PSC, will take a long time for getting the neces- G
sary recommendation. But nowhere it is said that direct recruits were not
i available or such recruitment had became impracticable. Thus there is no
breaking down of the quota rule. (832-F; 830-G-H; 831-A-B]

Direct Recruit Class II Engineering Officers' Association v. State of H
812 SUPREME COURT REPORTS (2000] 3 S.C.R.
A Maharashtra, (1990) 2 S.CC 715, distinguished.
~ c
N.K. Chauhan v. State of Gujarat, (1977) 1SCC308; Syed Khalid.Rizvi
v. Union of India, [1993) Suppl. 3 SCC 575 and M.S.L Patil v. State of
Maharashtra, (1996) 11 SCC 361, relied on. ..;...
B 2.2. In view of the admission by all parties that there is no express
rota rule, the decision of the High Court that rota principle applied c;annot
be upheld. There is no question of quota being necessarily 'inter-locked'
with rota. [832-B]

N.K. Chauhan v. State of Gujarat, (1977) 1 SCC 308 and B.S. Yadav v.
c State of Haryana, (1981) 1 SCR 1024, relied on.

2.3. A practice must be consistent with Rules, and that a practice not
consistent with rules is not acceptable. A past practice which was dehors a
rule could be of no help. [832-D-E]
D
L Chandra Kishore Singh v. State of Manipur, JT (1999) 7 SC 576 and
Stephen Joseph v. Union of India, [1997) 4 SCC 753, relied on.

3. The ad-hoc/stop gap service of the promo tees cannot be treated as
non-est merely because P.S.C. was not consulted in respect of continuance
E of the ad-hoc/stop gap service beyond six months. Such service is capable -~
~

of being regularised under Rule 23 of the J & K (CCA) Rules, 1956 and
rectified with retrospective effect from the date of occurrence of a clear
vacancy in the promotion quota, subject to eligibility, fitness and other
relevant factors. There is no 'rota' rule applicable. The 'quota' rule has
F not broken down. Excess promotees occupying direct recruitment posts
have to be pushed down and adjustment made in lat~r vacancies within
their quota, after due regularisation. Such service outside promotee quota
cannot count for seniority. Service of promotees which is retrospective
with effect from the date of vacancies within quota counts for seniority.
However, any part of such ad-hoc/or stop gap or even regular service .
G rendered while occupying the direct recruitment quota cannot be counted.
Seniority of promotees or transferees is to be fixed as per quota and from
date of commencement of probation/or regular appointment as stated ~
above. Seniority of direct recruit is from the date of substantive appoint-
ment. Seniority has to be worked out between direct recruits or promotees
H for each year. [847-F-H; 848-A-B]
..,. >.
S.P. GUPTA v. STATE

State of West Bengal v. Aghore Nath Dey, (1993] 3 SCC 371; Direct
813
A
Recruit Class II Engineering Officers' Association v. State of Maharashtra,
(1990] 2 SCC 715; Syed Khalid Rizvi v. Union of India, (1993] Suppl. 3 SCC
---1. 575; I.K. Sukhija v. Union of India, [1997] 6 SCC; Desoola Ramarao v. State
of A.P., [1988] Suppl. SCC; State of A.P. v. K.S. Muralidhar, [1992] 2 SCC
241; M. Janardhan v. State of A.P., (1994] Suppl. 3 SCC 298, relied on.
B
V Sreenivasa Reddy v. Govt. of A.P., (1995] Suppl. 1 SCC 572; K. Siva
'- Reddy v. State of A.P., (1988] 3 SCR 18; Ramender Singh v. Jagdish Prasad,
(1984] Suppl. SCC 142; A.P.M. Mayan Kutty v. Secretary, [1977] 2 SCC 360;
State ofT.N. v. E. Partpoornam, (1992] Suppl. 1SCC420; P.D. Aggarwal v.
State of U.P., (1987) 3 SCC 622; Masood Akhtar Khan v. State of M.P., [1990) c
4 SCC 24; Vijay Kumar Jain v. State of M.P., [1992) Suppl. 2 SCC 95; State
of Orissa v. Sukanti Mahapatra, [1993) 2 SCC 486; D1: Arundlzati Ajit
... Pargaonkar v. State ofMaharashtra, (1994] Suppl. 3 SCC 380; E. Ramakrislzan
v. State of Kerala, (1996) 10 SCC 565; C.K. Antony v. B. Muraleedlzaran,
[1998) 6 SCC 630; D.N. Agrawal v. State of M.P., [1990) 2 SCC 553; B.N. D
Nagarajan v. State of Karnataka, (1979) 3 SCR 937 and State of Bilzar v.
Akhouri Sachindra Nath, Am (1991) SC 1244, distinguished.

Baleshwar Das v. State of U.P., [1981) 1SCR449; B.S. Yadav v. State of
.>. Haryana, (1981) 1 SCR 1024; A. Janardhan v. Union of India, (1983) 2 SCR
936; G.P. Doval v. Chief Secretary Government of U.P., (1984) 4 SCC 329; E
Narender Chadd.a v. Union of India, (1986] 2 SCC 157; A.N. Pathak v.
Secretary to The Government, (1987) Suppl. SCC 763; Delhi Water Supply &
Sewage Disposal Committee v. R.K. Kashyap, (1989) Supp. 1 SCC 194;
Keshav Chandra Joshi v. Union of India, (1992) Suppl. 1 SCC 272; Rajbir
Singh v. Union of India, Am (1991) SC 518; A.N. Sehgal v. Raje Ram F
Sheoram, (1992] Suppl. 1 SCC 304; S.L Chopra v. State of Haryana, (1992]
Suppl. 1 SCC 391 and Keshav Dev v. State of U.P., (1999] 1 SCC, referred
to.

- 4. The contention of the direct recruits that direct recruitment ap-
pointment should be ante-dated from the date of occurrence of vacancy in G
direct recruitment quota, even if on that date the said person was not
i directly recruited, cannot be accepted. The reason that in Service Juris-
prudence, a direct recruit can claim seniority only from the date of his
regular appointment. He cannot claim seniority from a date when he was
not born in the service. [848-D; F] H
814 SUPREME COURT REPORTS (2000] 3 S.C.R.
A N.K. Chauhan v. State of Gujarat, (1997] 1 SCC 308 (at P.321); A.
Janaradlzana v. Union of India, (1983] 2 SCR 936 and A.N. Pathak v. Secre-
tary to The Government, (1987] Suppl. SCC 763, relied on.
"' 4'-
(The court directed the state of Jammu & Kashmir to appoint a high
,..____
level Committee within a month from the date of the judgment to go into
B the question as to whether in any department in Government service,
direct recruitment of existing vacancies has not been made and if there was
J
unreasonable delay; and to consider making recruitment expeditiously ~
depending on the needs in the service and other relevant factors, and to
ensure that no promotees are put in the direct recruitment quota, tempo-
c rarily or on stop gap or ad-hoc basis unless simultaneously proceedings are
initiated for direct recruitment through the service Commission. The Com-
mittee will recommend in what manner the direct recruitment could keep
pace with promotions as contemplated by rules. The Committee will find
out in which department the ad-hoc/stop-gap promotees are languishing
without their cases being referred to the Service Commission/DPC for
D regularisation \vithin their quota. The State will ensure that no relaxation
of basic recruitment rules is made for direct recruitment through P.S.C.,
or for purpose of regular promotions/recruitment by transfer. The recom-
mendations of the Committee may be considered, by Government and
implemented in accordance with the rule and in accordance with law
-~
.
E without unreasonable delay.) [850-C-F]

CIVIL APPELLAIB JURISDICTION : Civil Appeal No. 3034 of 2000
Etc. Etc.

From the Judgment and Order dated 14.12.98 of the Jammu & Kashmir
F High Court in S.W.P. No. 47 of 1998.

M.H. Baigh, Raju Ramachandran, G.K. Banerjee, Ms. Hina, Ms. Nandini
Gore, Dhruv Mehta, Ms. Shobha, S.K. Mehta, (M.A. Gani) General for J &

G
K, A.M. Magray, Ashok Mathur, N Safaya, Santosh Gupta, Saiwa Mitter, Ms.
Beena Madhavan, P.H. Parekh, G.M. Kawaoosa, N. Ganapathy, Ms. Rani
Chhabra, Ms. Richa Goyal, Sibo Sankar Mishra and P.N. Puri for the
-
appearing parties.
~
The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. Leave granted in all the special leave
H petitions.
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 815
These Civil Appeals arise out of several writ petitions filed in the High A
Court of Jammu & Kashmir in which common judgment was delivered on
14.12.1998. The judgment of the High Court deals with power of Government
to appoint officers on promotion temporarily for periods of more than six
month without consulting the Public Service Commission, grant of seniority
to such promotees in respect of service within their quota and also outside B
quota. Validity of the order passed by the State Government on 2.1. 1998
regularising, at one stroke, several ad hoc promotions made between
25.5.1973 to 31.12.1996 was in issue, so far as the Electrical Wing was
concerned. We are concerned only with the regularisation of ad hoc Assistant
Engineers and Assistant Executive Engineers (see Point 2 in the High Court
Judgment). The High Court held that ad hoc/stop-gap service of promotees c
could not be regularised. A contention was also raised before us by the direct
recruits that stop gap or ad hoc service of promotees could never be
regularised and only service rendered in a post where a person if appointed
"according to rules" can be regularised and that there was rota coupled with
quota. All the appeals before us have been filed by the promoted Assistant D
Engineers.

How the appeal have arisen :

SWP 522/90 was filed in the High Court by the direct recruit Assistant
Engineers of the Mechanical department to fix a seniority and to declare that E
they were entitled to the post of Assistant Executive Engineers w.e.f. thedate
of their appointment as Assistant Engineers and to treat direct recruits as
senior to respondents 3 to 121 therein (promotees) and to quash the promotion
of respondents 3 to 32 therein as Assistant Executive Engineers (Mechanical).
Similarly SWP. 227/97 and 47198 were filed by direct recruit Assistant F
Engineers (Electrical) seeking the quashing of Govenunent Order dated
12.12.1997 containing the seniorty list and also to quash the Government
Order dated 2.1.1998 whereby services of several ad hoc promotee Assistant
Engineers of the Electrical wing were regularised. They sought a further
direction for issuing a fresh seniority list and for promotion as per quota and
a direction not to fill up the post of Assistant Executive Engineers from
G
among promotees' quota till seniority as per quota was fixed. CWP 1869197
and 824-B/94 were filed by the direct recruits Civil Engineers (Hydraulic) for
fixing seniority as per the recommendations of the Committee constituted by
the Government by its order dated 31.2.1997 and for a direction not to
promote promotee Assistant Engineers as Assistant Executive Ellgineers till H
+
'--
816 SUPREME COURT REPORTS [2000] 3 S.C.R.
A a final seniority list was prepared. ~

SWP 705/94 and 777/94 were filed by the promotee Assistant Engi-
neers (Mechanical) to quash the seniority list of Assistant Engineers dated
28.4.1994 and for issuance of fresh seniority list according to date of
appoinunent, irrespective of quota. Similar relief was claimed by the promotee
B Assistant Engineers in SWP. 377/94. SWP 198/93 was filed by the promotee
Assistant Engineer (Mechanical) claiming seniority over direct recruits.
-4
The High Court in its impugned common judgment dated 14.12.1998
dismissed the petitions filed by the promotees namely SWPs 198/93, 705/94,
c 777/94 and it allowed the writ petitions filed by the direct recruits Assistant
Engineers namely SWPs 522/90, 824-B/94, 227/97, 1869/97 and 47/98.

The Facts:

The following facts are relevant :
-4
D
There are three wings of Engineers working in the various Deparunents
of the Government of Jammu and Kashmir - Mechanical, Electrical and Civil
Engineering. These posts in these three wings at various levels are of Junior
Engineers, Assistant Engineers and Executive Engineers. The recruiunent to
the posts of Assistant Engineers, as p~r the J.K. Engineering (Gazetted) ~
E Service Recruiunent Rules 1978 (hereinafter called the 'Recruiunent Rules,
1978') provided that 20% posts were to be filled by direct recruitment, 60%
by promotion of Junior Engineers who had degrees or equivalent qualification
with 3 years service and 20% by Diploma holders or those holding post
carrying scale of Rs. 340-700/450-700 etc. with IO years service.
F
In 1987, with a view to remove stagnation, the Government issued two
orders one on 29.6.87 and another on 29.10.87, the latter in supercession
of the former and re-organised the service as follows : (a) the existing post
...
of Assistant Engineer was upgraded and re-designated as Assistant Executive
Engineer, to be kept in charge of a sub-Division. The Assistant Engineer
G was to work as a Technical officer to the Assistant Executive Engineer in
the sub-division and also to the Executive Engineer in each division. All ~-
the Diploma holders (S~ction Officers) were to be re-designated as Junior
Engineers. In November i987, 1116 posts of Assistant Engineers were
created (as held by the High Court) in all the three wings, The Government
'H also issued SRO 209 of 1992 on 4.9.92, amending the Schedule to the
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 817
Recruitment Rules, 1978. The ratio was 20% by direct recruitment, 60% by A
promotion by graduate Junior Engineers with 3 years service and 20% by
Diploma holder Junior Engineers with 10 years service etc.

Thereafter, Government issued a large number of orders and officers
at various levels were promoted to the next higher post on an ad hoc basis B
for six months. Later Government issued orders continuing these ad hoc/stop
gap appointments till regularisation. This was done without consultation of
the Public Service Commission as required by Regulation 4(d)(ii) of the
Service Commission Regulations, 1957. These orders included some in which
several Junior Engineers were promoted as ad hoc Assistant Engineers in the
three wings of the Engineering Department (and also related to ad hoc c
promotions as Assistant Executive Engineers). This was done without follow-
ing the rules for promotion of the Junior Engineers as Assistant Engineers
which required consultation with the J & K Public Service Commission under
section 133 of the J.K. Constitution (corresponding to Article 320 of the
Constitution of India) or other rules. (The promotion as Assistant Executive D
Engineer required consultation with DPC). It was case of the direct recruits,
that these ad hoc promotions were made not only against the 80% (60% +
20%) quota of the promotees but also in respect of 10% out of the 20% quota
of direct recruits, in total breach of the quota rule. Direct recruitment was
indefinitely delayed to benefit promotee officers and even when it was E
initiated, it was restricted to 10%.

It appears that the; last direct recruitment in these wings was way back
in 1984. It was only on' 23.11.87 that the State Government referred to the
State Public Service Commission the matter relating to direct recruitment. But
instead of referring the matter of filing up the quota upto 20%, the reference F
was confined only for 10%. The advertisement was issued by the Commission
on 3.12.87. The respondents before us (who were direct recruit writ petition-
ers ill the writ petitic:ms before the High Court) applied for direct recruitment.
But, for a period of 4 years, the commission did not take any steps to make
recommendations. The candidates were interviewed during 1992-93 and a list G
of selected candidates was sent to Government for the 10% quota of direct
recruits. It was only after the High Court gave directions on 22.2.94 in certain
writ petitions and on other dates in other petitions, that thei-direct recruits were
appointed on various dates in 1994 as Assistant· Eri.giu.eers. Some direct
recruits were appointed much later. H
818 SUPREME COURT REPORTS [2000] 3 S.C.R.
A The direct recruits filed the various SWPs 522190, 227/97, 47/98, 1869/
97, 824-B/94 challenging the a,d hoc promotion of the Assistant Engineers
made by Government without consulting the service Commission beyond six
months and contended that continuance of a,d hoc stop gap promotion beyond
six months (as per the order issued during 1987 to 1996) was not-est and void
and could not be subject of regulariSation. The seniority list cannot show
B
these a,d hoc promotees as seniors to direct recruits. There is rota as weil as
· quota. They sought the quashing of existing seniority lists and they asked
for issuing fresh seniority lists. On the other hand, the promotee officers filed
SWP 98/93, 705/94 and 777/94 and in the two latter petitions, the seniority
list dated 28.4.94 was questioned to the extent it was favourable to the direct
c recruits.

The High Level Committee :

Government appointed a High Level Committee on 21.5.97 to go into
the various issues arising between the direct recruits and promotees. On the ·
D
three issues. referred, the Committee gave a Report soon thereafter in 1997.
It said that merely because the State Government could not make direct
recruitment due to inaction, the quota rule could not be said to have broken
down. Thereafter, it opined as follows : (1) as and when the direct
recruitment was made, the direct recruits would be entitled to placement of
E their seniority to the vacancies reserved for them as per the ratio. Similarly,
where the promotees came to be promoted in accordance with the rules "in
excess of their quota'', they could not be given seniority but should be given
seniority only from the respective dates on which vacancies in their quota
were available; (ii) seniority had to be determined only "from the respective
F dates on which their respective quota became available· in a particular year'
(iii) Qd hoc/stop gap appointment would not entitled an individual to the
benefit of seniority from the date of such a,d hoc/stop gap appointment", such
service not being according to rules. The period of officiation could not be
taken into account for seniori.ry. The Continuous length of a,d hoc service
could not be so counted.
G
The order dated 2.1.98 by Government regularising promotees services
.without consulting P.S.C. :

Ignoring the above report of the above Committee, and without any
H recommendation of the Public Services Commission for retrospective regu-
I

+
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 819
larisation, the Government issued, during the pendency of the writ petitions, A
-4 > an order on 2.1.98 so far as the Electrical Wing was concerned, stating that
ad hoc service of officers in various categories (starting for Junior Engineers
to Superintending Engineers) right from 25.5.73 to 18.4.96 would stand
regularised at various levels of the service including Assistant Engineers and
Assistant Executive Engineers levels, as a "one time exception". This order B
dated 2.1.98 covered several Assistant Engineers in Electrical Wrng wherein
ad hoc promotions were made. The regularisation was ordered subject to.

(a) The seniority of the officers concerned which will be fixed
according to the Rules;
c
(b) The outcome of writ petition, if any, pending in courts.

The writ petitions :

The above order dated 2.1.98 was questioned by direct recruits in the
High Court along with other seniority lists. It was contended for the direct D
recruits before the High Court that there was quota and rota, that the entire
ad hoc service was to be treated as non-est, whether it was rendered within
the promotion quota or outside the said quotas and stop gap/ad hoc service
of promotees could not be regularised at all. But the promotees contended
that there was no rota, that the quota rule had broken down and the entire E
ad hoc service as Assistant Engineers could be counted or regularised by tl1e
Government.

11ze findings of the High Co·u11 :

The High Court framed three points for consideration. It held on the F
first point that promotion to the post in the Gazetted cadre required consul-
tation with the Commission on the question of promotion/transfer from one
service to another and also on the suitability of the candidates for appoint-
ment, promotion and transfer; that under the J.K. Service Commission,
Regulation 4(d)(ii), officiating promotion or transfer to any service or post,
G
should not be for more than six months, unless the Commission was consulted
and that the orders for such ad hoc continuance beyond six months and till
regularisation, without consultation, were ineffective. It held that the quota
rule and not broken down. The posts were advertised in 1987, but it was only
in 1993, 1994 and in 1998 that the direct recruits were appointed in the three
wings, and that in the Civil Mechanical and Electrical Wings 7, 16 and 20 H
820 SUPREME COURT REPORTS (2000] 3 S.C.R.
A posts were under excess occupation by the promotees and these posts were
not filled by direct recruitment because the Government directed advertise-
ment of only 10% and not 20% for direct recruits. It was held that in SWP
824-B/94 filed by direct recruits, Government filed a reply stating that there
was 'quota rota' rule and therefore the said Rule applied. The seniority list
dated 28.4.94 in the Mechanical Wing - which was sought to be quashed in
B
SWP 705/94 by the promotees showed that the quota rule had not broken
down. The State had not placed before the Court any material to show why
it could not make direct recruitment. The excess promotees had to be pushed
down and had to be fitted in subsequent vacancies in their quota in later years.
On the second point, the High Court held that ad hocpromotions could be
c made for three months and not more than 9 months under rule 14(1) of the
J & K Civil Service (Classification Control and Appeal) Rules, 1956 (read
with Regulation 4(d)(ii) of the J & K Public Service Commission (Limitation
of Functions) Regulation 1997). Ad hoc service beyond 6 months could not
have been continued. But, in view of Regulation 4(d)(ii), "if the exercise of
D selection of candidates has not been done by the Commission for regulari-
sation" the promotees were not entitled to seniority. Under Rule 8 of the
Recruitment Regulations, 1978 probation was to be for 2 years. Hence, ad
hoc promotee could not be a 'member' of the service. To claim seniority the
promotion could not be de hors the Rules. Conditions of ser\rice could be
E relaxed but rules of recruitment could not be relaxed. The order of blanket
regularisation of the promoted Assistant Engineers dated 2.1.98 for the
Electrical Wing passed by the Governn;ient was in violation of Regulation
4(d)(ii) was bad. Such orders passed under executive powers were outside the
Rules and were invalid. On the third point, the High Court held that seniority
under Rule 11 of the 1978 Rules was to be determined in accordance with
F Rule 24 of the 1956 Rules on the basis of 'date of first appointment' i.e. date
of "substantive appointment or date of permanent appointment or date of first
appointment on probation against a clear vacancy". In as much as regulari-
sation of ad hoc promotions by the_ Government on 2.1.98 was ilJegal, the
promotees were not members of the service. The order dated 2.1.98 could
G not have the effect of regularising the entire ad hoc service. The direct recruits
could however count their seniority from the date of their substantive
appointment within their quota. However, the claims of the promotees whose
stop gap promotion exceeded six months without consultation of the Com-
mission should be referred to the Commission "for determining their suitabil-
H ity". The seniority was to be fixed f6r direct recruits and promotees in terms
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 821
of the quota-rota rule, within their respective quota in the particular year. A

Stay orders in their Courts :

In this Court notice in SLPs was issued on 7.4.1999 and the order of
the High Court was stayed. But then a further order was passed on 12.5.99
in IAs. 3 & 4 in SLPs 5329-5330/99 that the stay order dated 7.4.99 did B
not imply any right to effect promotion during the pendency of the SLPs. It
was directed that status quo be maintained.

During the course of hearing of the case, at one stage counsel made
some efforts 1to 9arrow done the disputes between the two groups by c
discussion but ultimately all the points arising between the parties were
argued elaborately and thoroughly.

The written submissions by both parties covered as many as sixty
rulings of this Court. Having regard to the vehement argument before us and
also in order to explain the various decisions, - which may appear to be D
apparently conflicting - we have thought it necessary to refer to most of the
relevant rulings. This has no doubt added to the volume of this judgment but
it could not be helped.

On the basis of the various submission, the following points arise for E
consideration :

The. Points :

(1) Can the promotees, for recruitment to the gazetted service, avoid
the Service Commission? Can the Government order that the entire ad hoc/ F
stop gap service of Assistant Engineers and Assistant Executive Engineers is
to be counted for seniority and can the order of regularisation dated 2.1.98
passed by Government (in respect of the Electrical Wmg) be treated as
amounting to an implied n!laxation of the rules of recruitment requiring
consultation with the Service Commission? Whether relaxation of recruit- G
ment rule is permissible?

(2) Whether the quota rule had broken down? Whether excess promotees
are to be pushed down? Whether there is a quota-rota rule?

(3) Whether the ad hoc/stop gap promotion of Assistant Engineers (and H
822 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Assistant Executive Engineers) could be made beyond six months and till
regularisation, by Government without consulting the Public Service Com-
-< ·•-
mission? Whether Government could have regularised the ad hoc service by
executive order dated 2.1.98? Whether, the point raised in para IX of written
submissions by the direct recruits that retrospective regularisation cannot be
made in respect of the ad'/wc stop gap service and could be made only if
B
the initial appointment as Assistant Engineers or Assistant Executive Engi-
neers was "in accordance with ru1es", is correct?

(4) Whether the direct recruits could claim a retrospective date of
recruitment from the date on which the post in direct rectuitment was
C available, even though the direct recruit was not appointed by that date and
was appointed long thereafter?

(5) To what relief?

Point 1 :
D
This point deals with the question whether the promotees can avoid
going through the Service Commission for recruitment to the gazetted.cadre?
This raises the question of the validity of the order dated 2.1.98 of retrospec-
tive regularisation of entire ad hoc service of promotees as Assistant Engi-
E neers and Assistant Executive Engineers passed by the Government, (in ~
relation to the Electrical Wing) without the approval of the Public Service
Commission and whether relaxation can be implied. Question arises whether
I
it is permissible to relax recruitment rules?

Implied relaxation of recruitment rule relating to promotion - plea as to
F
Learned senior counsel appearing for the promotee Assistant Engineers
contended that the order dated 2.1.98 regularising the ad hoc/stop gap service
passed by Government, even if it be without the concurrence of the Com-
mission, could be treated as one passed by the Government by impliedly
"relaxing" the Service Commission Regulation requiring consultation with the
G
Commission. Provisions or Article 320 requiring consultation with the Com-
mission (here Section 1-33 of the J & K Constitution), were not mandatory.
When promotees had put in long years of services, it was permissible for the
State to relax the recruitment rule and regularise the service outside the PSC
Regulations. It was to be deemed there was relaxation. This contention was
H contested by the learned senior counsel for the respondents.
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 823
The Rules : A

For the purpose of the above argument, the promotees relied on the
following rules :

Rule 13 of the 1978 Recruitment Rules states that in respect of
B
residuary matters, (i.e. 'matters not specifically covered by the said Rules),
the members of the service shall be governed by the rules, regulations and
orders applicable to the State/Civil Services in general. Therefore, Rules 5
of the J & K Civil Service (CCA) Rules, 1956 is attracted. It permits
relaxation of the Rules. It reads :
c
"Rule 5 : Any of these rules or rules made under them, may or
reasons to be recorded in writing, be relaxed by the government in
individual cases, if Government is satisfied that a strict application of
the rule would cause hardship to the individual concerned or confer
undue benefit on him". D
Further, Rule 5(4) of the Recruitment Rules, 1978 states that: In case
suitable candidates are not available for promotion, the posts shall be filled
up by direct recruitment and vice versa'. In view of the words 'vice versa',
the promotees contend that if suitable direct recruits are "not available", the
direct recruit quota can be filled up by promotees. Direct recruitment was not E
made for several years and hence it was clear that suitable direct recruits were
"not available" as required by proviso to Rule 5(4) of the Recruitment Rules,
. 1978.

The quota between direct recruits and promotees is governed by Rule F
5(2) of the 1978 Rules which states that appointment to a service shall be
made by (a) direct recruitment (b) by promotion/selection and (c) partly by
direct recruitment and partly by promotees, in the manner and ratio as
indicated against each post in the Schedule. The quota of 20% for
direct recruits Assistant Engineers and 60% for graduate Junior Engineers
and 20% for non-graduate in the lower category is provided in the Schedule. G
Further, Rule 11(1) of the 'above said Rules of 1978 states that seniority
will be regulated under the provisions of the J & K Civil Service
(Classification, Control and Appeal), Rules 1956. The proviso to Rule 11(3)
states that the seniority in a particular year is to be determined as per ratio.
It says : H
824 SUPREME COURT REPORTS [2000] 3 S.C.R.
A "Provided further that the seniority of Assistant Engineers by
direct recruitment and by promotion shall, in a particular year
be determined, in the ratio fixed for direct recruitment and
promotion.

B The relaxation Rule; namely, Rule 5 of the 1956 J & K CCA Rules,
1956 referred to earlier, enables the power of relaxation to be exercised on
the ground of 'hardship' in "individual cases". Reasons have to be recorded
in writing.

Reasons for so called relaxation of recruitment rules - Cabinet decision of
c 19.12.97:

As to the reasons for relaxation of recrnitment rule of promotion
requiring consultation with the Commission, counsel for promotees referred
us to the Cabinet decision preceding the issuance of the blanket regulari-
D sation Order dated 2.1.98. It is dated 19.12.97.. We have to examine the
reasons stated in the Cabinet decision and find out if adequate reasons have
been given. It was stated there that in view of Court litigation, there used
to be delay in fmalising. seniority lists and that this had resulted in officers
retiring at lower levels and getting fmancial/promotional benefit only after
E retirement. The fmalisation of seniority lists and the 11_eference of the '
~
promotees' cases to the P.S.C./D.P.C. would take fairly long time to be
completed. It was felt that it would defmitely be preferable if the confusion,
was cleared once and for all. At the level of Assistant Engineers, 574 were
on ad hoc promotion and at the level of Assistant Executive Engineers there
were 401, requiring regularisation. This view was supported by the
F Law Department and it said that undue delay had adversely affected the
promotees and the only remedy was to regularise their promotion in )>
relaxation of rules from the date they were promoted on ad /we basis against
substantive vacancies without prejudice to seniority to be fixed in
accordance with the "rota and quota" rules. It opined that all those who had
G held the post uninterruptedly for 6 months (originally Law Department said
2 years) or more and had rendered "satisfactory service" could be
regularised in rnlaxation of rules. But the General Administration Depart-
ment was however of the view that this relaxation proposal should be placed
before the PSC/DPC and clearance obtained. The matter was therefore
H referred to PSC which instead of considering the proposal, requested by its
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 825
letter dated 25.11.97 for various documents (1) 'final seniority lists; (2) A
eligibility list on prescribed form, (3) APRs of all Engineers for the relevant
period, (4) integrity certificate and (5) information regarding Court orders
and (6) Copy of Rules, for the purpose of considering regularisation under
the Rules. But rejecting the said letter of the PSC, f!ie Cabinet straightaway
directed relaxation as a 'one time exception', stating that : B
"due to the reasons that the finalisation of seniority list, collect-
ing APRs of all engineers for the relevant period, obtaining date of
eligibility/date of vacancy, one is expected to take a very long time
and may even be impossible in very old cases. When this Department
places these engineers in charge of higher posts, there must have been C
clear vacancies.

Hence, information required by the PSC cannot be prepared and
the matter would stand further delayed, defeating the very purpose of
this proposal. Accordingly, it is proposed that regularisation of all ad
hoc/stop gap/incharge promotions, may be approved as a "one time D
exception".

On the above reasoning, by a single stroke of pen, by the above order dated
2.1.98 such stop gap/ad hoc promotions made in respect of the Electrical
Wmg, from time to time were regularised including those at the level of
Assistant Engineers and Assistant Executive Engn;eers. It was no doubt stated E
that this· would be subject to.

"(a) The seniority of the officers concerned which will be fixed
according to the Rules;

(b) the outcome of writ petitions, if any, pending in the courts". F
It may be noted that the order of Government dated 2.1.98 does not however
use the word "relaxation" though the Cabinet proceedings use the said word.
The above order was issued after the writ petitions were filed by the direct
recruits. This order too was questioned by them by amending the relief in
their writ petitions. G

Relaxation Rules - scope of: If recruitment rules can be relaxed : A previous
view:
Some relaxation rules permit relaxation of conditions of service and
some permit relaxation of rules. Some permit relaxation in any particular case H
826 SUPREME COURT REPORTS [2000] 3 S.C.R.
A and some permit relafation in favour of a person or class of persons. In J.C.
Yadav v. State of Haryana, [1990] 2 SCC 189, a three Judge Bench while
dealing with Rule 22 of the relevant rules which permitted relaxation, in
case of hardship, in "any pa11icular case", held that the above words did
not mean a particular person but meant "pertaining to an event, situation or
B circumstances". The power could therefore be exercised even in favour of a
group.

1\vo earlier decisions :

Promotees relied upon the ruling in Q.S. Lamba v. Union of India,
c [1985] 2 sec 604 but the said decision cannot, in our view, apply. There
the promotees were appointed regularly but were allowed to occupy the posts
. of direct recruits, for long periods. It was held that it must be deemed that
the relevant recmitment rule was relaxed in their favour and their service
in such direct recruit posts could be counted. This case in our view
D is distinguishable because there the promotees were regular promotees though
appointed outside the promotee quota. The position before us is different
because here the promotees are ad hoc promotees and further the issue
relates to all posts, within the outside promotion quota. Narender Chadda
v. Union of India, [1986] 2 SCC 157 no doubt supports the case ofpromotees.
E There the promotees ~ccupied not only their own quota but also the
direct recruitment quota to some extent. After 15 to 20 years, the temporary
service of those who had put in 4 years service in the feeder category
was regularised. It was held that all the promotees were entitled to regular
promotion and the seniority of all promotees (including some of those
selected by DPC) was to be reckoned from date of continuous officiation.
F
This was done on the theory of implied relaxation of recruitment rule
to all posts within and outside the promotion quota. But this case, in
our view, is to be treated as an exception because the promotees there were
not regularised for is 15 to 20 years (see p. 171) and it was held that the
non-regularisation over such a long period violated Articles 14 and 16
G of the Constitution of India. It is no doubt true that the Constitution Bench
in the Direct Recruit Class II Engineering Officers Assistant v. State
of Maharashtra, [1990] 2 SCC 715 referred to Narender Chadda's case _'y-
at p. 726 and it observed : "There is considerable force in this view also"
but as we shall presently show, the recent trend of cases in this Court is
H entirely different.
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 827
Recent trend of cases : Recruitment rules cannot be relaxed : A
The decisions of this Court have recently been requiring strict confo1m-
ity with the recruitment mies for both direct recruits and promotees. The view
is that there can be no reiaxation of the basic or fundamental rules of
recruitment. In Keshav Chandra Joshi v. Union of India, (1992] Suppl 1 sec
272 the Rule permitted relaxation of conditions of service and it was held B
by the three Judge Bench that the rule did not permit relaxation of recruitment
rules. The words 'may consult the PSC' were, it was observed, to be read
as 'shall consult PSC' and the mle was treated ·tnandatory. In Syed Khalid
Rizvi v. Union of India, (1993] Suppl. 3 SCC 575 at 603, decided by a three
Judge Bench, a similar strict principle was laid down. The relevant Rule - c
Rule 3 of the Residuary Rules (see p. 603) (para 33) in that case did permit
relaxation of "rules" Even so, this Court refused to imply relaxation of
recruitment rule and observed :

"the condition precedent, therefore, is that there should be
appointment to the service in accordance with rules and by operation D
of the rule, undue hardship has been caused, ...... It is already held"
that conditions of recruitment and conditions of service are distinct
and the latter is preceded by an appointment according to Rules. The
former cannot be relaxed".
E
Similarly, in State of Orissa v. Sukanti Mahapatra, (1993] 2 SCC 486,
it was held that though the power of relaxation stated in the rule was in regard
to 'any of the provisions of the rules', this did not permit relaxation of the
rule of direct recruitment without consulting the Commission and the entire
ad hoc service of direct recruit could not be treated as regular service.
Similarly, in Dr. M.A. Haque v. Union of India, (1993] 2 SCC 213 it was F
held that for direct recruitment, the rules relating to recruitment through the
Public Service Commission could not be relaxed. In Jammu and Kashmir
Public Service Commission v. Dr. Narinder Mohan, (1994] 2 sec 630 it was
held that the provisions of the J & K Medical Recruitment Rules could not
be relaxed for direct recruitment. Backdoor direct recruitments, could not be G
permitted. See also Dr. Anundhati Ajit Pargaonkar v. State of Maharashtra,
(1994] Suppl. 3 SCC 380. In Dr. Surinder Singh Jamwal and Anr. v. State
of J & K, (1996] 9 SCC 619, this Court directed the direct recruits to go
before the Public Service Commission.

Decisions cited for promotees distinguishable : H
828 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Two decisions which have been referred to by counsel for promotees
have to be referred to but these can be distinguished. In V. Sreenivasan Reddy
v. Govt. of A.P., (1995] Suppl 1 SCC 572 there was an order of relaxation
in favour of ~e promotees who were not regularised under Rule 23 of the
A.P. State and Substantive Service Rules. In that case this Court felt that the
B Government's order relaxing the requirement of consultation with the Com-
mission need not be interfered with because the promotees were placed by
the Government below the direct recruits. This case is therefore clearly
distinguishable. (We shall be referring to this case again under Point 3). Again -{
in As/wk Kumar Uppal V. State of J & K, [1998] 4 sec 179 while holding
that the power of relaxation could not be arbitrarily exercised, this Court
c upheld the relaxation of the relevant standard prescribed for typing, in rewect
of five direct recruits. Tilis was because the State Recruitment Board in that
case had made a recommendation for relaxation of the requisite standard in
their favour and this was accepted by the Govt. The relaxation was upheld
because Government had retrospective amended the promotion rule so that
D promotees could just go into promotion quota by sheer seniority rather than
by selection as was the rule earlier. The five direct recruits were very close
to the other selected direct recruits and were more meritorious than the
promotees.

Summary:
E
The result of the discussion, therefore, is that the wholesale regulari-
sation by order dated.2.1.1998 (for the Electrical Wing), by way of implied
relaxation of the recruitment rule to the gazetted category is invalid. It is also
bad as it has been done without following the quota rule and ·without
F consulting the Service Commission. Further, power under Rule 5 of the J &
K CCA Rules, 1956 to relax rules cannot, in our opinion, be treated as wide
enough to include a power to relax rules of recruitment.

On facts, relaxation bad :

G On facts, the reasons given in the Cabinet note for granting relaxation
are hopelessly insufficient. In fact, the letter of the Commission date
25.11.97, shows that the Commission was prepared to give its opinion in
regard to regularisation of each promotee but the Government backed out
when the Commission called for the records relevant for considering suitabil-
H ity for regular promotion, in our. view, there can be no hardship for a person
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 829
seeking appointment or promotion to go by the procedure prescribed therefor. A
The relevant recruitment rule for promotion cannot itself be treated as one
producing hardship. Narender Chadda' case must be treated as an exception
and not as a rule. In fact, if such relaxation is permitted in favour of
promotees then the same yardstick may have to be applied for direct recruits.
In fact the J.K. Government has already started to do so and this has not been B
accepted by this Court in Narender Mohan's case and Dr. Surinder Singh
Jamwal's case refe1Ted to above. If it is to be held that direct recruitment can
}- also be permitted without consulting the Service Commission (in cases it is
required to be consulted) there will, in our opinion, be total chaos in the
recruitment process and it will lead to backdoor recruitment at the whims and
fancy of Government. Such a blanket power of relaxation of recruitment rules c
cannot be implied in favour of the Government.

In the present case, the Government was merely carried away by
sympathy to the promotees. By not making direct recruitment after 1984, by
restricting direct recruits to 10% rather than permitting 20% and by delib-
D
erately promoting the Junior Engineers to the other 10% quota of the direct
recruits, the State Government had definitely acted in a biased manner. There
is any amount of justification for the grievance of the direct recruits that the
State had passed an omnibus order on 2.L98 regularising all ad hoc promotees
(Electrical Wing) without consulting the Commission, by way of deemed
relaxation, in a wholly arbitrary manner, counting the entire ad hoc service E
of promotion. Their illegal occupation of direct recruitment quota was not
even noticed. Their eligibility or suitability was not considered. It is probable
that even those who had bad ACRs were regularly promoted. The requirement
of following quota for each year was not respected. The regularisations order
dated 2.1.98 was therefore bad and was therefore rightly quashed by the High F
Court. (This declaration is c;onfined to Assistant Engineers and Assistant
Executive Engineers (Electrical Wiiig) - as stated under Point No. 2 of the
High Court Court's judgment). We confirm the view of the High Court on
1 this point. The result is that the promotees have to go through the Service
Commission for getting into the gazetted category of Assistant Engineers. The
G
Assistant Engineers have to go through DPC for promotion as Assistant
Executive Engineers. Point 1 is decided accordingly.

Point 2 :

This point concerns the question as to whether the quota rules has H
-+·
830 SUPREME COURT REPORTS [2000] 3 S.C.R.
A broken down and whether there is a quota-rota rule. The High Court held
~
it did not.
-
Reliance is placed by the promotees on the decision of the Consti-
tution Bench in Direct Recruit Class II Engineering Officers' Association
v. State of Maharashtra, [1990] 2 SCC 715. It laid down in proposition D
B & E as follows :

(D) If it becomes impossible to adhered to the existing quota rule,
it should be substituted by an appropriate rule to meat the needs of
the situation. In case, however, the quota rule is not followed
c continuously for a number of years because it is impossible to do
so, the inference is· irresistible that the quota rule had broken down.

(E) When the quota rules has broken down and the appointments are
made from one source in excess of the quota, but are made after
following the procedure prescribed by the rules for the appointment,
D the appointees should not be pushed down below the appointees from
the other source inducted in the service at a later date.

The above decision deals with a situation where the quota rule has
broken down and regular promotees whose service are regularised are posted
in the direct recruitment quota. In that event, it is permissible to count that
E -1-.
service for purpose of seniority of the promotee. But, that is the position when
--... the quota rule breaks down.

Quota rule has not broken down :

F On the question of breakdown of quota rule, except the lethargy of the
State Government and its inaction and its not asking the Service Commission
to make direct recruitment, no other cause is visible. The Cabinet note only
stated that because reference to PSC would take a long time, the ad hoc
services of promotees were to be regularised. The delay on part of the
Government appears to us to be motivated for the purpose of blocking the
G quota of the direct recruits and giving a part of it to promotees. We have
noticed that when a very belated decision was taken to make direct recruit-
ment, the same was restricted to 10% rather than to the statutory quota of )I.-
20%. This attitude on the part of the State was not reasonable.

H Further under Rule 5(4) of the Recruitment Rules, 1978 it is provided
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 831
that in case suitable candidates are not available for promotion, the posts shall A
be filled up by direct recruitment and vice-versa. Thus, there must be
evidence that suitable candidates were "not available" for direct recruitment.
Such non-availability cannot be inferred when, as a fact, not even a reference
is made to the commission to find out if upon advertisement, anybody will
respond. Thus there is no breaking down of the quota rule. B

That in such situations there can be no break down of the quota rule
)- is clear from decided cases. In NK. Chauhan v. State of Gujarat, (1977] l
sec 308, the rule said that 'as far as practicable', the quota must be followed.
Krishna Iyer J. said that there must be evidence to show that effort was made
to fill up the direct recruitment quota. It must be positively proved that it was C
not feasible, nor practicable to get direct recruits. The reason should not be
'procrastinary'. In Syed Khalid Rizvi v. Union of India, [1993] Suppl. 3 SCC
575, it was held that mere non-preparation of select list does not amount to
collapse of the quota rule. In M.S.L Patil v. State of Maharashtra, [1996]
11 sec 361 it was held that mere omission to prepare lists did not amount D
to break down of quota rule.

One other significant fact is that the Cabinet note dated 19.12.1997 only
States that cases of the ad hoc promotees' if referred to PSC, will take a
long time for getting the necessary recommendation. But no where it is said
that direct recruitment was not possible nor that direct recruits were not E
available or such recruitment had became impracticable. For the aforesaid
reasons, we hold that the quota rule has not broken down.

Rota : no express rota rule :

We shall next refer to the contention for the direct recruits that "rota- F .
quota" rule is to be applied. Before us, it is not disputed by the learned
counsel for the direct recruits that in the Recruitment Rules, 1978, there is
only a quota rule and that no rota rule has been expressly prescribed.

Question is whether 'rota' can be implied? G

The direct recruits contend that rota is to be implied or read into the
'quota' rule. It is also argued that there has been a previous practice of
applying a rota and that this fact stands conceded in the counter-affidavit filed
by the Government in SWP. 824-B/94. Reliance is also placed on Cabinet
note of December, 1997 where the view of the Law Department that quota- H
832 SUPREME COURT REPORTS [2000] 3 S.C.R.
A rota rule is to be applied, is referred to.

In our opinion, in view of the admission before us by all parties that
there is no express rota rule, the decision of the High Court that 'rota'
principle applied cannot be upheld. As held in N.K. Chauhan v. State of
Gujarat, [1977] 1 SCC 308, by Krishna Iyer, J. there is no question of a
B quota being necessarily 'inter-locked' with rota. It is not necessarily inscribed
within every quota rule. Again in B.S. Yadav v. State of Haryana,
[1991] 1 SCR 1024. Chandrachud, CJ held that a 'quota' does not imply a ··{
rota. The first part of the contention of the direct recruits is without any
substance.
c
Rota cannot be brought in because only of past practice :

So far as second part of the contention that there has been previous
practice, we may refer to L Chandrakishore Singh v. State ofManipur, (1999)
7 SC 576 (p. 592). There it was held that a practice must be consistent with
D Rules and that a practice not consistent with rules is not acceptable. In that
case; the practice of not considering for promotion probationers and consid-
ering only confirmed candidates was, held not consistent with the Rules and
could not be permitted. Similarly, in D. Stephen Joseph v. Union of India,
[1997 4 sec 753 it was held that a past practice which was de hors a rule
E could be of no help. The question in that case was as to whether the
requirement of particular years of service with graduation for promotion
meant service after graduation or service during which a degree qualification
was acquired. A practice of counting three years after obtaining qualification
was not accepted. In that view of the matter, the second part of this contention
also goes.
F
Hence, it must be held that there is no rota couple with quota but that
there is only a quota rule. Point 2 is decided accordingly.

Points 3:
G This point is crucial. The point here is whether the Government could
have continued the ad hoc/stop gap service of promotees beyond six months
and till regularisation without consulting the Commission and whether
Government could have regularised without· sucb consultation. Point also is
whether as contended in para IX of the written submissions of the
H direct recruits, the retrospective regularisation of the service of the
+
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 833
... -;;, promotees is not permissible unless the original promotion is "in accordance
with rules"?
A

Ad hoc/stop-gap service beyond six months require P.S.C. consent. Govem-
ment cannot regularise the period without consultation.

In our view, the High Court was right to the extent it held that the B
rules did not permit continuance of the ad hoc/stop gap promotion beyond
)--
six months and the Government could not have continued the ad hoc/stop
gap promotion till regularisation without consulting the Commission. This
is clear from Regulation 4(d)(ii) already referred to. The High Court was
also right in holding that the Government could not have also passed any
c
orders such as the one dated 2.1.98 of regularisation of the entire ad hoc
service without consulting the ~ommission.

Regularisation of ad hoc/stop-gap service under Rule 23 : The contention
·'"- of direct recruits and the High Court's view :
D
Here, two important findings given by the High Court have to be
referred to. The High Court at one stage observed as follows: if the exercise
of selection of candidates has not been done by the Commission for
regularisation of ad hoc promotees' for substantive promotions, in· that
event, without consultation of the Commission, the regularisation of ad hoc
~ E
promotions is in violation of Regularisation 4(d)(ii) framed under the
constitutional provision contained in section 133 or the Constitution of
Jammu and Kshmir". This would mean that the. High Court in a way
accepted that services of such promotees could be regularised if the Service
Commission was consulted.
F
But the High Court again stated at a later stage that the ad hoc/stop
~
gap service rendered by promotees could not be regularised and for that
proposition it relied upon several rulings of this Court. But those decisions,
as we shall show a little later were cases where it was held that a direct recruit
could not count his ad hoc service rendered prior to the date of selection.
Those rulings cannot be applied, as shown below, to the cases of promotees G
for holding that ad hoc stop gap service of the promotees could not be
-:i regularised. If the High Court meant that such service could not be regularised
under Rule 23 at least to the extent when vacancies arose in the promotee
quota, subject to eligibility and suitability of the promotees based on ACRs
etc. - we are of the opinion, for reasons to be given below, that the said H
--+
834 SUPREME COURT REPORTS [2000] 3 S.C.R.
A view of the High Court is wrong and runs counter to overwhelming authority
of this Court that such service of promotees could be regularised in the posts
"i( ..
relatable to the promotee quota provided the PSC/DPC was consulted and
subject to eligibility etc.

Perhaps based on the above view of the High Court, the direct recruits
B have raised a point in their written submissions in para ix as follows :

"Even where rules permit antedating of probatibn, the service -·{
rendered in stop-gap arrangement cannot be counted towards sen-
iority. Discretion to antedate- appointment can be exercised only
c where initial appointment is according to rules. Even a rule that
permits regularisation of service Retrospectively, does not entitle
counting of stop gap service towards seniority."
!:"
Rules relating to retrospective regularisation permit regularisation of ad ~
hoc/stop gap service of promotees :
D
For the purpose of deciding the point, it is necessary to refer to other
rules relevant on the question of regularisation. Rule 2(e) ofthe Recruitment
Rules, 1978 defines "Member of Service" as a person appointed io a post in
the service under the said rules. Under rule 5 of the said Rules which deals
E with "Qualification and method of recruitment", it is stated in sub-clause (1)
that one must possess the qualifications stated in the schedule for appointment
or promotion. Clause (2) refers to 'appointment' to a service to be made by
(a) direct recruitment. (b) by pro~otion/selection and (c) partly by direct
recruitment and partly by promotion. Rule 8 of the 1978 recruitment Rules
deals with 'probation' and states that persons 'appointed' against substantive
F
vacancies, whether directly or by promotion, to any class, or category in the
}:.
service shall be on probation for two years and their confirmation shall be
regulated by the provisions of the J & K (Civil Services (CCA) Rules, 1956.
Rule 11(1) of the same Rules refers to seniority to be regulated by J & K Civil
Services (CCA) Rules, 1956. The second proviso to Rule 11(3) of the 1978
G Rules requires that "seniority of Assistant Engineers appointed by direct
recruitment and by promotion shall, in a particular year, be determined, in
the ratio fixed for direct recruitment and promotion". It is to be noticed that )-
these Recruitment Rules, 1978 for Engineers do not speak separately of
recruitment by transfer. They only speak of direct rectui~ent and promotion.
H Even the schedule when it deals with 60% quota for graduate Junior
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 835
Engi-neers and 20% quota for non-graduate, the word used is 'promotion'. A

But under the J & K Civil Service (CCA) Rules, 1956, Rule 2(e)
defines 'member of service' as a person holding or appointed to a whole
time pensionable post. Rule 2(f) defines 'period of probation' of a member
of service as the period prescribed in the rules. Rule 2(g) defines 'proba-
tioner' as a person appointed to a service who has not been declared to have B
satisfactorily completed his probation. Rule 2(h) defines 'promotion' as the
"appointment" of a member of a service or class or service in any category
or grade, to a higher category or grade of such service or class. Rule 2(i)
defines a person "recruited direct' as one recruited otherwise than by
promotion or by transfer. Rule 2G) defines Recruitment by transfer as one c
where at the time of his 'appointment' thereto, he is either a member/
probationer in another service. Rule 9 refers to 'first appointment' as (a)
one by promotion or by transfer and (b) by direct recruitment or (c) partly
by (a) or partly by (b). Rule 14(1) deals with 'temporary appointment' not
exceeding three months at a time and under Rule 14(3), the temporary
D
appointee is to be replaced by a member of the service or a candidate
qualified and considered fit to hold the post under the 1956 Rules. Rule
14(4) says that a temporary appointment will not be regularised as a
probationer nor will he have any preferential claim for future appointment.
Rule 15, which follows rule 14 permits commencement of probation from
an anterior date and it reads as follows : E
"Rule 15: If such person is subsequently appointed to such service,
class or category in accordance with these rules, he shall commence
his probation therein from the date of such subsequent appointment
or from such earlier date as may be determined by the Minister-in-
charge."
F

Thus a person temporarily appointed under Rule 14 can be appointed to the
service according to rules from an anterior date. Rule 20 states that no
person shall be eligible for confirmation as a member of a service or class,
until he has been on probation in such service or class continuously or in G
the aggregate for a period of two years. Rule 22 deals with declaration of
completion of probation. Rule 23 is again important and deals with 'appoint-
ment of Members' with retrospective effect. It reads as follows :

"Rule 23 : (1) A probationer shall, if a substantive vacancy in the
permanent cadre of the category for w}iich he was selected exists, H
836 SUPREME COURT REPORTS [2000) 3 S.C.R.
A be appointed to the service at the earliest possible opportunity in the --"i(
order of seniority, and if such vacancy existed from a date previous ·~
to the issue of the order of appointment, he may be so appointed with
retmspective effect from such date or, as the case may be, from such
subsequent date from which he was continuously on duty as a member
of the service."
B
Under Rule 23, whenever probation is commenced in respect of an
officer, it is permissible to appoint him to the service with retrospective effect
_..
from such date from which the person was "continuously on duty as a
member of the service". Read with Rule 2(e) which define 'member of
c service' it means the time from which he was "continuously holding the
pensionable post". Rule 23 does not make any distinction between different
modes of recruitment. It is well settled that in the case of a direct recruit,
the probation commence only from a date after his selection and he can hold
a permanent vacancy only after such selection. According to service jurispru-
D dence (see in fact. discussion under Point 4), a direct recruit cannot claim
appointment from a date much before his selection. So far as a promotee and
also one who is recruited by transfer, are concerned, before ·such persons are
appointed as members of the service under Rule 23, first their probation must
commence. Then such person becomes a probationer for purposes of rule 23.
Once he is on probation, and if a substantive vacancy in the permanent cadre
E existed in which the promotee or a recruitee by transfer can be accommo-
dated, and if such a vacancy has arisen from a date previous to the issue of
the order of appointment (i.e. appointment by promotion or transfer) then
under Rule 23 had may be appointed to the service (i.e. regularly) with
retrospective effect from such anterior date (or, as the case may be, from such
F subsequent date) from which (he has been continuing on duty on a non-
pensionable post [see 2(e)] defining 'member of service'). This period can
certainly be one that a person holds in a stop gap or ad hoc manner. The
order of 'promoting a person in the service' regularly from an anterior date
and the order of probation from an anterior date can be simultaneously
G passed. Tha~ is how under Rule 23, a person holding a temporary, stop-gap
or ad lwc appointment beyond three months can become a probationer and
get appointed regularly to the service with retrospective effect. '-f...

Then comes the Rule of 'Seniority'. Seniority is to be determined by
the 'date of first appointment' to such service, class or category or grade. It
H reads as follows :
+
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 837

..... -~ "Rule 24 - Seniority: (1) The seniority of a person who is subject
to these rules has reference to the service, class, category and grade
A

with reference to which the question has arisen. Such seniority shall
be determined by the date offirst appointment to such service, class,
category or grade, as the case may be."

Note 1: ......................................................
B

Interpretation : The words "date of first appointment" occurring in
the above rule will mean the date of first substantive appointment,
meaning thereby the date of permanent appointment or the date of
first appointment on probation on a clear vacancy, confirmation in c
th~ latter case being subject to good work and conduct and/or passing
of any examination or examinations and/or tests.

Provided that the inter-se seniority of two or more persons
appointed to the same service, class, category or grade simultane-
ously, will, notwithstanding the fact that they may assume the duties D
of their appointments on different dates by reason of being posted to
different stations, be determined;

(a) in the case of those promoted by their relative seniority in the
lower service, class, category or grade; E
(b) if the case of those recruited direct (except those who do not join
their duties when vacancies are offered to them) according to the
positions attained by and assigned to them in order of merit at the time
of competitive examinations or on the basis of merit and ability and
physical fitness etc., in case no such examination is held for the F
purpose of making selections;

(c) as between those promoted and ~ecruited direct, by the order in
which appointment have to be allocated for promotion and direct
recruitment as prescribed by the rules. G
I Note ...............................
~

It has to be noticed that the interpretation clause below Rule 24 is very wide
and under that provision. seniority of a promotee depends on the date of
the commencement of probation on a clear vacancy. Probation can be H
-+
838 SUPREME COURT REPORTS [2000] 3 S.C.R.
A commenced in the case of a person promoted or recruited by transfer from
the date of existence of a clear vacancy in the promotee/transfer quota and
depending upon his eligibility, suitability based on ACRs.

Rule 25 deals with temporary and regular promotions. It reads as
follows :
B
"(1) All promotions shall be made by the appointing authority.

(2) Promotions to a service or class or to a selection category or grade
in such service or class shall be made on grounds of merit and ability
c and shall be subject to the passing of any tests that Government may
prescribe in this behalf, seniority being considered only where the
merit and ability are approximately equal.

(3) ·····················································

D (4) where it is necessary in the public interest owing to an emergency
which has arisen and could not have been foreseen, to fill immediately
a vacancy by promotion from a lower category, and where promotion
in accordance with these rules would involve undue delay or expendi-
ture or cause administrative inconvenience, the appointing authority
may promote a person otherwise than in accordance with these rules ~-
E
temporarily until a person is promoted in accordance with these rules,
but such temporary promotion shall in no case exceed three months
on each occasion.

(5) A person promoted under sub-rule (4) shall not be entitled by
F reason only of such promotion to any preferential claim to future
promotion."

A point has been raised by the direct recruits that there is no Rule
(corresponding to Rule 15) for commencing probation retrospectively in the
G case of a person promoted or recruited by transfer temporarily under rule 25.

It is true that while Rule ~5 permits probation to be commenced from
an anterior date in the case of one 'appointed' temporarily there is no such }--
clause in Rule 25 dealing with 'promotions'. That does not, in our opinion,
mean that in respect of a person temporarily appointed by transfer, probation
H cannot be commenced from an anterior date. In our view, this power is
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 839
implicit in Rule 23 itself when it speaks of a probationer being appointed A
as a member of a service with retrospective effect. Once a promotee or
recruitee by transfer is appointed on probation, it is permissible to appoint
him under Rule 23 as a member of the service from an anterior date when
a substantive vacancy existed in his quota. It is then obvious that such power
to make a retrospective appointment of a member implies a power to
B
commence probation of such person from an anterior date when a clear
vacancy existed in his quota. We cannot imagine that the Rule-making
authority did not visualise delays in regularisation of ad hoc or stop-gap or
temporary service rendered by promotees or those recruited by transfer and
kept in mind delay only in cases of appointments under Rule 14.
c
Thus, the stop-gap/ad hoc or temporary service of a person appointed
by transfer as an Assistant Engineer or by promotion as an Assistant
Executive Engineer can be regularised through PSC/DPC from an anterior
date in a clear vacancy in his quota, if he is eligible and found suitable for
such transfer or promotion, as the case may be, and his seniority will count D
from that date.

Should the services proposed to be reguarised have been rendered according
to rules?
E
We then come to the crucial point (point IX in written submissions)
raised by the direct recruits that if the appointment of a promotee as
Assistant Engineer is not according to rules but is a stop gap or ad hoc
appointment and if it lasts more than 6 months, it requires consultation with
the Commission under Regulation 4(d)(ii) of the P.S.C. Regulations and if
there is no consultation such service is 'not according to rule' and cannot
F
be regularised, i.e. even by consulting the Service <;::ommission at a later
stage, and in spite of such service being rendered within promotion quota,
subject to eligibility and suitability.

Plea is not correct on the face of it : G

We are unable to hold that the entire service of a promotee continued
beyond 6 months without consulting the Commission must be treated as non-
est and should stand wiped out altogether and that only service rendered in
accordance with rules can be retrospectively regularised. H
840 SUPREME COURT REPORTS (2000] 3 S.C.R.
A On the face of it, there is a contradiction in the plea for if service
to start with is in accordance with Rules, it will not come under Rule 25
at all. It will be regular to start with and there is no need for regularisation.
The need arises for regularisation only if the service of the promotees is
not according to rules to start with.

B
Regulation 4(d)(ii) does not refer to any penal consequences:

Regulation 4(d)(ii) of.the J.K. Public Service Commission (Limitation ....
of Functions) Regulations, 1957· merely states that it shall not be necessary
for the commission to be consulted on the suitability of candidates for
c
"officiating promotions or transfer to any service or post when at the
time of making the promotion or transfer there is reason to suppose that the
officiating promotion or transfer will be for not more than six months"

This Regulation therefore fixes the period of service of such
D
officiating promotee or transferee which need not go before the Commis- .
sion. It does not however say that if the Commission is not consulted
before six months, or where the Commission when consulted within six
months does not pass an order of extension before the period of six
months, the said service is to be treated as non-est. Further, in our view,
E as already stated, such service can be regularised under Rule 23 of the ~.
J.K. (CCA) Rules, 1956, by commencing the probation retrospectively and
by appointment to the service from a date when a substantive vacancy
was available within the quota. It is only in respect of the period of service
rendered outside the quota that retrospective regular promotion/recruitment
F by transfer cannot be made in respect of that part of the service. That
would mean that only such service which is rendered by the promotee/
transferee-recruitee within his quota, can be regularised. Similarly if he
is found not eligible, nor fit, nor suitable - though posted in a post within
quota-that service cannot be counted. It is not the employees' fault if the
State does not take steps to refer the question of continuance beyond six
G. months to the P.S.C. for years. It is one thing to say that the ad hoc service
of a promotee does not count for seniority till regularised after consulting
the Service Commission and another thing _to say that it cannot, under any
circumstances be regularised. In as much as the consequence of non-
consultation with the Commission is not stated in the Regulation 4(d)(ii)
H of the P.S.C. Regulations 1957, and no penal consequences are mentioned,
+
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 841
such service within quota subject to eligibility and suitability cannot be A
ignored when power is exercised under Rule 23.

Ovenvhelming authority of this Court to say that ad hodstop gap service
of promotees can be regularised :

This principle is supported by ample authority. Procedural i°:action B
towards promotees, it has been held, can be "~ectified'. This is explained in
the three Judge Bench case in State of West Bengal v. Aghore Nath Dey,
[1993] 3 SCC 371. In that judgment propositions A and B laid down in Direct
Recruit Case [1990] 2 SCC 715 were explained by Verma, J. (as he then
was). It was pointed out that proposition A where it was held that the ad hoc c
service would not count was one where the same was stop gap (i.e. and
remained as such). In proposition B it was said that ad hoc service could
count in certain situations such as where there was only a 'procedural'
irregularity in making appointments according to Rules. In such a situation,
the irregularity can be subsequently 'rectified'. In such a case such ad hoc/
D
stop-gap or temporary service cold be counted. Again in Syed Khalid Rizvi's
case, it was held by Ramaswamy, J. speaking for the three Judge Bench that
proposition A and B in Direct Recruit case had to be read with para 13
therein. Similarly, in I.K. Sukhija v. Union of India, [1997] 6 SCC 406,
Nanavati, J. explained propositions A and B by reference to Aghore Nath
Dey's case [1993] 3 sec 371, referred to above. E

The Andhra Pradesh cases are based on similar rule: such service can be
regularised with retrospective effect :

Apart from the general principle of law as stated above, there are ruling
F
of this Comt on almost identical rules which go against the contention raised
by the direct recruits. Rules identical to Rules 15 and 23 of the J.& K. (CCA)
Rules, 1956 have come up for consideration in this Court in cases arising
from Andhra Pradesh. These decisions are obviously binding on us. A case
directly in point is the one in Desoola Rama Rao v. State of A.P., (1988]
Suppl. SCC 221. The relevant rule in that case [Rule 23(a)] is similar to Rule G
15 and Rule 23 of the J&K (CCA) Rules of 1956. Rule 23(a) of the AP State
and Subordinate Services Rules read as followings:

"Rule 23( a) If a person having been appointed temporarily under
sub-rule (a) or sub-rule (c) of Rule 10 to a post borne on the cadre H
842 SUPREME COURT REPORTS . [2000] 3 S.C.R.
A of any service, class or category or having been appointed to any
service, class or category otherwise than in accordance with the rules
governing appointment thereto is subsequently appointed to any
service, class or category in accordance with the rules, he shall
commence his probation from the date of such subsequent appoint-
ment or from such earlier date as the appointing authority may
B determine."

We shall examine the facts closely. The respondents 3 and 4 there
were temporarily promoted as Assistant Engineer on 14.10.1959 and 19.5.60
respectively. The appellant was directly recruited on 18.7.66 as Assistant
Engineer. Under rule 23(a) the services of the respondents 3 and 4 were
c retrospectively regularised by commencing probation from 19.5.61 in both
cases by order of the Chief Engineer dated 3.7.67. This Court held that the
respondent-promotee officers would be senior to the appellant even though
the appellant was appointed substantive as a direct recruit on 18.7.66 and
the respondents were on that date working only in a temporary capacity from
D 14.8.59 and 19.5.60 but once their services were regularised by order dated
3.7.67 (passed no doubt after 18.7.66) it could take effect from anterior
dates. Jt will be noticed that even in the above case, the regularisation was
not of the entire temporary service of the promotees from 14.8.59 and
19.5.60 but only from 19.5.61 in both cases. In other words when the posting
Assistant Engineers were filled, based on their qualifying service and
E availability of vacancies in their quota, part of the temporary service before
19.5.61 was lost and was not counted.
Again, in respect of the same Rule 23(a) of the Andhra Pradesh Rules,
this Court observed in State of A.P. v.K.S. Muralidhar, [1992] 2 SCC 241
that there can be no objection under the said rule for retrospective regu-
F
larisation.
Similar is the position in M. Janardhan v. State of A.P., [1994] Suppl.
3 SCC 298. There adverting to Rule 37(e) of the AP. Rules which also
permitted regular promotion from an 'anterior date', (like Rule 23 here) it
was held that the said retrospective promotions were rightly upheld by the
G
Tribunal.
Cases fmm other States Support promotee's regularisatjon with retrospective ~
effect :

Apart from cases arising from Andhra Pradesh the position appears to
H be the same as per the cases arising from other States, so far as promotee' s
+

S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 843
ad hoc service is concerned. InBaleshwar Das v. State ofU.P., [1981] 1 SCR A
449, it was observed (at p.464) that officiating promotees are to be given dates
by the Service Commission for counting seniority. In B.S. Yadav v. State of
Haryana, [1981] 1 SCR 1024; it was said that the promotees have to be
confirmed in their quota if found fit and qualified and when vacancies arose
· in their quotas. In A. Janardhana v. Union of India, [1983] 2 SCR 636 (at
B
p.961) it was observed that the seniority of the promotees was to count from
the date of occurrence of vacancy in their quota. In G.P. Doval v. Chief
Secretary, Government of U.P., [1984] 4 SCC 329, it was held that subsequent
appointment by the Public Service Commission to the temporary appoint-
ments will relate back to the initial dates or appointment for purpose of
seniority on basis of rule of continuous officiation and the seniority could not C
be reckoned only from the date of approval or selection by the Commission.
In Narender Chadda v. Union of India, [1985] 2 SCC 157, it was held that
promo tees were first to be regularised from dates of occurrence of v~cancies/
eligibility. The initial appointment though not according to rules, the said
service could not be ignored. In A.N. Pathak v. Secretary to the Government, D
(1987] Suppl. SCC 763, it was held that the promotees had to be inserted
at places reserved for them as per quota. In Delhi Water Supply & Sewage
Disposal Committee v. R.K. Kashyap, [1989] Suppl. 1 SCC 194, it was held
that once regularisation was made by the PSC/DPC, the said service could
not be ignored.
E
As to when post of Ctd hoc/stop gap service of promotees cannot be
regularised: if outside quota or not eligible or suitable :

In some cases, a distinction is made between two parts of the ad hoc/
stop gap service or promotees, one which can be regularised and the other
which cannot be regularised. In Keshav Chandra Joshi v. Union of India, F
[1992] Suppl. 1 SCC 272, it was held that previous promotee would get
regularisation from date of occurrence of vacancy in promotion quota. Before
that, it would be fortuitous. Of course, excess promotees could not claim
seniority if the quota rule had not broken down because they occupy the seats
of direct recruits. In Rajbir Singh v. Union of India, AIR O991) SC 518, the G
ad hoc promotion was in 1975.. and the subsequent regularisation was in 1986
and it was held that the period ad hoc service could be counted. In A.N.
Sehgal v. Raje Ram Sheoran, [1992] Suppl. 1 SCC 304, it was held that the
promotees whose services were r~gularised could count their earlier service
from the date of availability of a post within their quot~ but the earlier period H
844 SUPREME COURT REPORTS [2000] 3 S.C.R.
A between the starting point of ad hoc promotion and the date of occurrence
of the vacancy could not be counted. In S.L Chopra v. State of Haryana,
[1992] Suppl. (1) SCC 391, it was held that promotees service would count
from date of availability of post within quota and service before that dates
would be fortuitous. In Syed Khalid Rizvi v. Union of India, [1993] Suppl.
B 3 sec 575, it was held that the service of promotee would count from date
of_allotment to select list but the period prior thereto would not count. In
Keshav Dev v. State of U.P., 'T1999] 1 SCC 280, Srinivasan J. held, on a
review of case law that seniority of promotees would count from the dates
fixed within the quota by DPC. (In this case, a good number of judgments
which were relied upon before us by direct recruits were distinguished).
c
Thus, there is overwhelming authority of this Court to hold that ad
hoc, stop gap service could be regularised from an anterior date after
consulting the Service Commission from the date of vacancy in promotee
quota, after ctmsidering fitness, eligibility, suitability and ACRs. Therefore, 1*
D the ad hoc/stop gap service rendered by promotees beyond six months and
without the consent of the Public Service Commission as per Regulation
4(d)(ii) cannot be treated as non-est. It can be regularised later after
consulting the Commission in respect of posts in the promotion quota and
subject to eligibility and suitability based on ACRs. etc. Only the period
rendered outside quota or the period rendered within quota when the
E promotee was not eligible or found fit has to be excluded.

Unfortunately, the High Court as well as the direct recruits have
applied wrong rulings to the case of promotees and ignored the overwhelm-
ing authority, referred to above, in favour of promotees. We shall now refer
F lo these aspects in detail.

Cases relied upon by direct recruits - not applicable :

The direct recruits have strongly relied upon the decision in V.
Sreenivasa Reddy v. Govt. of A.P., (1995] Suppl. 1 SCC 572. But this
G decision cannot be of any help to them. In that case Rule IO and Rule 23
of the Andhra Pradesh State and Subordinate service Rules were referred
to. It was pointed that the promotee's temporary service under Rule IO (i.e.
service rendered. in a post to which the officer was not appointed according
to Rules), could .not be counted on far.ts, because there was no order of
H retrospective regularisation. In fact, this Court accepted that if regularised
+
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 845
>I under Rule 23 of the A.P. Rules, the temporary appointees could have been A
regularised from an anterior date. (This Court then referred to certain rulings
which said that direct recruits could not count ad hoc service rendered by
them before their regular selection). On facts, this Court held that the
Government had relaxed the rule regarding P.S.C. consultation but had
placed the promotees below the direct recruits and this need not be B
interfered with. This case far from supporting the direct recruits, supports
the promotees.

Similarly, K. Siva Reddy v. State of A.P., [1988] 3 SCR 18 = [1988]
Suppl. SCC 225 cannot also be of any help. It was there held that the
retrospective regularisation cannot be resorted to under Rule 23(a) of the C
Andhra Pradesh Rules if the Service is rendered by the promotee is in a
post within direct recruit quota. The promotees were to be confined to their
quota. This case is distinguishable.

Again, Ramedhra Singh v. Jagdish Prasad, [1984] Suppl. SCC 142
is distinguishable in as much as it was there held that under executive power,
D
retrospective regularisation cannot be made. There it can be made after
consulting the Commission is well settled by various decisions. This ruling
too does not advance the case of the direct recruits .

....-': Principle that only service "according to Rules" can be regularised applies E
to direct recruits and not to promotees:

Next, the direct recruits and the High Court have relied upon several
rulings which say that direct recruits cannot seek benefit of ad hoc service
rendered before their regular appointments.
F
These rulings cannot be applied to the case of promotees. In fact the
4 I
principle laid down in these cases is consistent with principles in service
jurisprudence so far as the ad hoc service rendered by direct recruits before
the date of their regular selection is concerned. Their service counts only
from date of regular appointment according to rules and any ad hoc /stop
G
gap service rendered before regular selection cannot count for seniority.

The direct recruits relied upon A.P.M. Mayan Kutty v. Secretary,
[1977] 2 sec 360. In that case, the petitioner was appointed in the 1950
temporarily under Rule lO(a)(i) of the Rules (which is similar to the ad hoc
appointment under Rule 14 and Rule 25 in J. & K. Rules and rule lO(a)(i) H
+
846 SUPREME COURT REPORTS [2000] 3 S.C.R.
A of the AP Rules) but was directly recruited only in 1954. It was held that
tlre pre 1954 service could not be counted. Likewise in State of T.N. v. E.
Paripoornam, [1992] Suppl. 1 SCC 420, the petitioner in the High Court
was appointed temporarily nnder Rule IO(a)(i) but was recruited much later
under the rules through PSC. The PSC gave him a rank. It was held that
B his seniority would be as per the rank and not from date of temporary
appointment. A.P.M. Mayan Kutty's case was followed. P.D. Aggarwal v.
State of U.P., [1987] 3 SCC 622 was one where it was held (see para 26-
28) that the ad hoc service of the officer who was later directly recruited ·{
in consultation with the PSC, could not count as it was not regularised
service. Their seniority would count only from the date they become
c members of the services, even if they were qualified earlier on date of
temporary appointment (see p.646). Masood Akhtar Kan v. State of M.P.,
[1990] 4 SCC 24 is also a case of the direct recruit and it was held that
his previous service before regular selection by PSC could not count. Vijay
Kumar Jain v. State of M.P., (1992] Supp. 2 SCC 95 is similar, In State
D of Orissa v. Sukanti Mohapatra, (1993] 2 SCC 486, the exercise of power
of relaxation by the Government to count the ad hoc service of direct recruit
prior to PSC recruitment was held bad and the order, to that extent, was
quashed. Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra, [1994]
Suppl. 3 SCC 380 is also a case where ad hoc service of employee before
direct recruitment by PSC was held not liable to be counted. In E. Ramakrishnan
E
V. State of Kerala, [1996] 10 sec 565 the pre-recruitment service of 13 years
was held not to be counted. All these cases cited relate to ad hoc service of
direct recruits before selection and are therefore distinguishable and could not
have been relied upon to deprive the promotees of their ad hoc service.

F Promotees cannot seek regularisation of ad hoc service in ceTtain situations:

We shall next refer to another set of cases relied upon by the direct
recruits where, on facts, the promotees were not given benefit of ad hoc/stop
gap service. Here the service rendered by the promotee was either outside
quota or the candidates were not eligible by the date the order of regulari-
G sation was passed or were not having the required experience. In C.K.
Antony v. B. Muraleedharan, (1998] 6 SCC 630, arising from the Kerala
State has some special features. There was a rule similar to Rule 23 of the
J & K Rules and Rule 23(a) of the Andhra Pradesh Rules. The said rule
permitted retrospectiye regularisation of the promotees from anterior dates
H but this rule stated that the said regularisation should be "without prejudice
+
S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 847
to seniority". It was no doubt interpreted that the rule meant that the A
seniority of direct recruits could not be affected. The question as to when
it could be said that the seniority of a direct recruit would be pr~judiced,
was not elaborated. Whether the case of direct recruits would be prejudiced
even if the promotees were given seniority from an anterior date upon a
\ post within their quota, was not decided. Further, on facts, the earlier ad B
hoc promotion of the promotees was not against cadre posts but was on the
excess quota. Obviously, it could not count for seniority in view of Direct
Recruit's case. Any regularisation of such service in a direct recruitment
post would definitely prejudice the seniority of direct recruits. In view of
the above peculiar features, the case is clearly distinguishable. Similarly, the
decision in D.N. Agarwal v. State of MP, [1990) 2 SCC 553, cannot help. c
There it was held that the benefit of retrospective regularisation for promotees
could not be granted but this was because the promotees lacked the requisite
years of experience and were not eligible. B.N. Nagarajan v. State of
Kamataka, [1979] 3 SCR 937 the promotees service froml.11.1956 was
regularised and it was held that the order of regularisation by government D
w.e.f. 1.11.1956 by an executive order was not tenable because the probation
Rules came in 1958 and in fact, the promotions were partly within quota
of direct recruits. The case in State of Bihar v. Akhouri Sachindra Nath,
AIR (1991) SC 1244, is again distinguishable because there the promotees
were not even officiating in the post on 22.2.61 and were not even born
E
in the cadre. These cases are all distinguishable.

Unfortunately these rulings have been wrongly relied upon by the
direct recruits or by the High Court, to hold that promotees are not entitled
to benefit of the ad hoc/stop gap service.
F
Summary:
4
Summarising the position, we therefore hold that the ad hoc/stop gap
service of the promotees cannot be treated as non-est merely because P.S.C.
was not consulted in respect of continuance of the ad hoc/stop gap service
beyond six months. Such service is capable of being regularised under Rule G
23 of the J&K (CCA) Rules, 1956 and rectified with retrospective effect from
--t' the date of occurrence of a clear vacancy in the promotion quota, subject to
eligibility, fitness and other relevant factors. There is no 'rota' rule applicable.
The 'quota' rule has not broken down. Excess promotees occupying direct
recruitment posts have to be pushed down and adjusted in later vacancies H
848 SUPREME COURT REPORTS (2000] 3 S.C.R.
A within their quota, after due regularisation. Such service outside promotee
quota cannot count for seniority. Service of promotees which is regularised
with retrospective effect from date of vacancies within quota counts for
seniority. However, any part of such ad hoc/stop gap or even regular service
rendered while occupying the direct recruitment quota cannot be counted.
Seniority of promotees or transferees is to be fixed as per quota and from
B
date of commencement of probation/regular appointment as stated abbve.
Seniority of direct recruit is from the date of substantive appointment.
Seniority has to be worked out between direct recruits or promotees for each
year. We decide point 3 accordingly.

C Point 4 :

direct recruits cannot claim appointment ftvm date of vacancy in quota
before their selection :

We have next to refer to one other contention raised by the respond-
D ents-direct recruits. They claimed that the direct recruitnient appointment
can be antedated from the date of occurrence of a vacancy in the direct
recruitment quota, even if on that date the said person was not directly
recruited. It was submitted that if the promotees occupied the quota
belonging to direct recruits they had to be pushed down, whenever direct
E recruitment was made. Once they were so pushed down, even if the direct
recruit came later, he should be put in the direct recruit slot from the date
on which such a slot was available under direct recruitment quota.

This contention, in our view, cannot be accepted. The reason as to
why this argument is wrong is that in Sen'ice Jurisprudence, a direct recruit
F can claim seniority only from the date of his regular appointment. He cannot
claim seniority from a date when he was not born in the service. This
principle is well settled. In N.K. Chauhan V. State of Gujarat, (1977] 1 sec
308 (at p.321) Krishna Iyer, J. stated :

G "later direct recruit cannot claim deemed dates of appointment for
seniority with effect from the time when direct recruitment vacancy
arose. Seniority will depend upon length of service."

Again, in A. Janardlzana v. Union of India, (1983] 2 SCR 936, it was held
that a later direct recruit cannot claim seniority from a date before his birth
H in the service or when he was in school or college. Similarly it was pointed
+

S.P. GUPTA v. STATE [M. JAGANNADHA RAO, J.] 849

-· out in A.N. Pathak v. Secreta1y to the Govemment, [1987] Suppl. SCC 763
(at p.767) that slots cannot be kept reserved for the direct recmits for
A

retrospective appointments.

What we have stated in points I to 4 in respect of ad hoc Assistant
Engineers applies to ad hoc Assistant Executive Engineers, to the extent of
the principles laid down, are applicable. We say this in view of point 2 that B
was framed by the High Court covering both the cadres. We hold on Points
1 to 4 as stated above.

Point 5:

The relief: c
In view of our decision on Points 1 to 4, the appeals will be governed
by our findings on points 1 to 4. We further direct as follows. The Public
Service Commission and the Government will complete the exercise of
regular appointment of the promotees - Assistant Engineers and Assistant
D
Executive Engineers within four months from today. Till such time the stay
of promotions granted by this Court will operate. After passing orders under
Rules 15 or 23, as the case may be, and in conformity with quota and year-
wise adjustment of quota, a fresh provisional seniority list will be prepared
in the category of Assistant Engineers. Objections will be invited and the final
seniority lists will be issued within two months of last date fixed for filing E
objections. The stay of promotions granted by us will stand vacated once the
provisional seniority list of Assistant Engineers is prepared. Promotions can
be made, subject to review. After receiving objections, the provisional list
shall be finalised as statefi above and a-final seniority list will be issued.
Pending issue of final seniority list of Assistant Engineers there will be no F
reversions of Assistant Engineers already promoted as of today. Once the list
is finalised, there will be a review of all promotions to the category of
Assistant Engineers in respect of all promotions made to that· category.
Thereafter, a provisional seniority list will be issued in the category of
Assistant Executive Engineers within one month of the final list of the
G
Assistant Engineers and objections will be called for. The stay granted by
us of further promotions of Assistant Executive Engineers shall then stand
vacated. There will be no reversions. of Assistant Executive Encineers ~

already promoted till final seniority list of Assistant Executive Engineers
is published. Their fmal list will be published within two months after the
last date for filing objection to the provisional list. H
+
850 SUPREME COURT REPORTS [2000] 3 S.C.R.
A certain general directions to the State of J &K for the future : •·
Apart from the above specific directions, we think this is an occasion
to issue certain general directions to the State of Jamrnu & Kashmir. As
pointed out earlier, the State of Jamrnu and Kashmir has been tlouting basic
rules of recruitment by granting relaxation of the rules of direct recruitment
B as also the rules requiring consultation wi~ PSC/DPC for promotions/
recruitment by transfer. In order to ensure that this is not done in future, Qie ,
following directions shall also issue. / ~
(A) The State of Jammu and Kashmir shall appoint a high level
c Committee within a month from today to go into the question as to whether
in any department in Government service, direct recruitment of ;existing
vacancies has not been made and if there was unreasonable delay, the State
will consider making direct recruitment expeditiously depending on the needs
in the service and other relevant factors. But it will ensure that no promotees
are put in the direct recruitment quota, temporarily or on stop gap or ad hoc
D basis unless simultaneously proceedings are initiated for direct recruitment
through the Service Commission. The Committee will recommend in what
manner the direct recruitment could keep pace with promotions as contem-
plated by rules.

E (B) Similar, the Committee will find out in which departmeJilt the ad
hoc/stop-gap promotees are languishing without their cases being referred to
the Service Commission/DPC for regularisation within their quota.

(C) The State of Jarnrnu and Kashmir Will ensure that no relaxation
of basic recruitment rules is made for direct recruitment through P.~.C., or
F for purposes of regular promotions/recruitment by transfer. The recommen-
dations of the Committee referred to above may be considered by Govern-
ment and implemented in accordance with the rule and in accordance with
bw without unreasonable. delay.

G The appeals are disposed of as stated above. There will be no order
as to costs.

K.K.T. Appeals disposed of.

H