V.P. SHRIVASTAVA AND ORS.versusSTATE OF M.P. AND ORS.

                         V.P. SHRIVASTAVA AND ORS.                                    A
                                           v. ·
                            STATE OF M.P. AND ORS.

                                FEBRUARY 2, 1996

                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.)                                B

           Service Law-Madhya Pradesh State Industries (Gazetted) Service
     Recntitment Rules, 1965-Mode of recrnitment to post of Assistant Director
     of Indusirie§-Detennination of inter se seniority between a direct recntit and
     a promotee-Where appointment is only ad hoc and not according to                 C
     mies-Officiation in such post cannot be taken into account for fixing
     seniority.

          Practice and Procedure-Principle of detemiination of seniority-Chal-
     lenged-State is necessary party.
                                                                                      D
           The appellants, direct recruits as Assistant Director of Industries,
     having been appointed on 29-9-1980 through the process of selection,
·•   challenged the selection list for promotion. The respondents, ad-hoc
     promotees to the post of Assistant Director, they having been promoted
     on 27.9.1980, de-hors the rules, in anticipation of the approval of the Public   E
     Service Commission, were shown senior to the regular appointees like the
     appellants.

           Administrative Tribunal dismissed the application while holding
     that in an earlier case while deciding the inter se seniority of 1974 recruits
     the Tribunal had decided to take ad-hoc appointment of the promotees             F
     into consideration and therefore the decision should govern the case and
     that since the promotion in favour of the respondents in the year 1980
     could not be challenged after such a long time, the said promotees would
     be entitled to count their entire service for the purpose of determining of
     seniority and since all the promotees had not been arrayed as party              G
     respondents no relief could be granted to the appellants. This appeal had
     been filed against the Judgment of the Tribunal.

           The appellants contended that the Tribunal erred in law in declaring
     the promotees to be senior to the direct recruits solely on the ground that
     the promotees were appointed on 27.9.1980 whereas the direct recruits            H
                                         59
     60                    SUPREME COURT REPORTS                   [1996] 2 S.C.R.

. A were appointed on 29.9.1980; that non-inclusion of affected party will not
     be fatal to the case since the very principle of determination of inter se
     seniority adopted by the State Government was challenged, the only neces-
     sary party was the State itself and that selection list having been finalised
     only in the year 1988, on 23.12.1988, the appellants' application before the
 B   Tribunal in 1989 could ~ot be held to be barred on the principle of delay
     and laches.

           The respondents merely contended that they had served in the post
     for a longtime, alteration of the seniority need not be made by this court.

 C         Allowing the appeal, this Court

            HELD: 1.1. The initial appointment of the respondents on promotion
     not having been made following the procedure laid down by the Madhya
     Pradesh State Industries (Gazetted) Service Recruitment Rules of 1965 and
     even though they were continuing in the post uninterruptedly but the Public
 D   Service Commission having not approved their appointments as yet, their
     officiation in such post could not be taken into account for considering the
     seniority and the promotees could not be declared senior to the direct
     recruits solely on the ground that the promotees were appointed on
     27.9.1980 whereas the directrecruits were appointed on 29.9.1980. The
     appellants must be held senior to the respondents ad hoc promotees. [65-C,
 E   66-BJ

           Direct Recrnit Class II Engineering Officers Association & Ors. v. State
     of Maharashtra & Ors., [1990) 2 SCR 900; State of West Bengal & Ors. v.
     Ag/tore Nath Day & Ors., [1993) 3 SCC 371 and Sreenivasa Reddy & Ors. v.
 F   Govt. Andhra Pradesh & Ors., [1995) Suppl. 1 SCC 572, followed.

          1.2. The appellants did not challenge the so called ad-hoc appoint-
   ments of the promotee respondents but they did challenge the position of
   the said ad-hoc promotee respondents over the appellant in the seniority
   list. The very principle of 'determination of seniority' made by the State
 G Government being under challenge, for such a case State was in necessary
   party who has been impleaded. The Tribunal erred in law in holding that
   non inclusion of the affected parties was fatal to the proceeding.
                                                                [66-B-C, 67-B]
           General Manager, South Central Railway Secunderabad and Anr. Etc.
 H v. A. V.R. Siddhanti and Ors. Etc., [1974) 3 S.C.R. 207 and Prabodh Venna
                      V.P. SHRIVASTAVA v. STATE [PATTANAIK, J.]                  61

-       and Others, Etc. v. State of Uttar Pradesh and Other.s Etc., (1985) 1 SCR 216, A
        relied on.

              1.3. The final gradation list was prepared only on 23.12.1988 and the
        appellants had approached the Tribunal in 1989 and therefore the ques-
        tion of delay did not arise. (68-A]
                                                                                       B
-               CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2769 of
        1996.

            From the Judgment and Order dated 24.7.92 of the Madhya Pradesh
        Administrative Tribunal, Jabalpur in O.A. No. 894 of 1988.
                                                                                       c
                P .P. Rao, Amitabh Verma and Ashok Mathur for the Appellants.

                A.K. Chitale, S.K. Agnihotri for the Respondents.

                Ashok Kr. Singh for Respondent No. 4.
                                                                                       D
                The Judgment of the Coo.rt was delivered by

                PATIANAIK, J. Leave granted.

              This appeal is directed against the Judgment of the Madhya Pradesh       E
        Administrative Tribunal dated 24th July, 1992 in Original Application No.
    1
        894 of 1988. The appellants are the direct recruits as Assistant Director of
        Industries, they having been ap_pointed on 29.09.1980 through the process
        of selection conducted by the Fublic Service Commission. The respondents
        are the ad hoc promotee.s tp the post of Assistant Director, they having
        been promoted on 27.09.1980. The inter se seniority between these two          F
        groups of appointees is the subject matter of controversy in this appeal.

              The State of Madhya Pradesh had framed a set of Rules called
        Madhya Pradesh State Industries (gazetted) Service Recruitment Rules,
        1965 (hereinafter referred to as 'the recruitment Rules of 1965'). Under
        the said rules, 50 per cent posts of Assistant Director of Industries were G
        to be filed by direct recruitment and balance 50 per cent by promotion.
        The aforesaid Rule was replaced by a new set of Rules called Madhya
        Pradesh State Industries (gazetted) Service Recruitment Rules, 1985
        (hereinafter referred to as 'the recruitment Rules of 1985'). Both these
        Rules though provide for the mode of recruitment to the post of Assistant H
    62                    SUPREME COURT REPORTS                   [1996) 2 S.C.R.

A Director of Industries as wtll as the ~ocedure therefor, but do not contain
    any provision for determination of inter se seniority between a direct recruit
                                                                                     -
    and a promotee. Therefore the said seniority had to be determined in
    accordance with the general principle.

          Though the principle has been authoritatively laid down by Constitu-
B tion Bench of this Court in the case of Direct Recruit Class II Engineedng
    Officers Association and 01:~. v. State of Maharashtra and Ors., reported in
    [1990) 2 SCR 900, commonly called the Direct Recruits Case, but yet very
                                                                                     -
    often the High Courts and the Administrative Tribunals have been com-
    mitting the mistake in applying ratio of this case. In the case in hand the
C   Administrative Tribunal has failed to apply the ratio laid down in Direct
    Recruits Case and as such has committed an error.

           Under the Recruitment Rules, i965 no appointment to the service
    could be made except after selection by one of the methods of recruitment
D specified in Rule 6. So far as the direct recruitment is concerned the
    selection has to be made by the Public Service Commission after interview-
 ,. ing the candidates as provided under Rule 11 and then Commission
    forwards a list to the Government arranging the persons in order of merit
    as provided in Rule 12 and finally the Government makes the appointments
    from the said list. So far as the appointment to the service by promotion
E is concerned, under Rule 13 a preliminary selection committee is con-
    stituted which committee considers the cases of all eligible persons as
    provided under Rule 14 and finally a list of suitable persons is prepared
    by the said committee under Rule 15. The selection is made on the basis
    of merit and suitability in all respects with due regard to seniority and
F thereafter the names of the officers included in the list are arranged in
     order of seniority. The list thus prepared is forwarded to the Public Service
     Commission as provided under Rule 16 and only after approval of the
    Commission under Rule 17, it forms the selection list for promotion. The
    State Government then makes appointments from the select list as
    provided in Rule 18. Admittedly the appellants who are direct recruits had
G been appointed in accordance with the prescribed procedure under the
     Recruitment Rules. whereas the promotee respondents had not been ap-
    pointed in accordance with the procedure prescribed for promotion under
    the Recruitment Rules. A bare look at the letter of appointments of the
    respondents dated 27.9.1980 clearly indicate that the appointments had
H been made in anticipation of the approval of the Public Service Commis-
             V.P. SHRIVASTAVA v. STATE [PATIANAIK, J.]                     63

sion and the appointments were until further orders. Thus the appointment A
of the respondents on 27.9.1980 was de-hors the rules and though the said
respondents being continued since September 1980, Mr. Rao, learned
senior counsel appearing for the appellants submitted that the Public
Service Commission has not yet granted approval to the appointments of
the respondents which fact is not disputed by the learned counsel appear-
                                                                              B
ing for the private respondents as well as by the counsel appearing for the
State. In the year 1983 a provisional seniority list of the Additional Direc-
tors was drawn up by the State Government wherein ad hoc promotees
were shown senior to the regularly appointees like the appellants. The
appellants filed objections to the said provisional list. Without taking any
decision on the same the State Government issued another provisional c
selection list in the year 1986 but continued the mistake which was there
in the 1983 list. The appellants put forward their grievances again on
18.9.1987. The seniority list prepared in 1983 and 1986 were withdrawn.
Then on 19.9.1988 another provisional list was brought out wherein the
appellants were against shown junior to the ad-hoc promotees some of D
whom are-the private respondents. The appellants against filed the repre-
sentation and finally on 23.12.1988 the State Government brought out the
final selection list wherein the appellants were again shown junior to the
said ad-hoc promotees. The appellants therefore approached the State
Administrative Tribunal. The Tribunal by the impugned order dismissed
the application essentially on two grounds namely, in an earlier case while E
deciding the inter se seniority of 1974 recruits the Tribunal has decided to
take ad-hoc appointment of the promotees into consideration and there-
fore that decision should govern the present case. The Tribunal also came
to the conclusion that since the promotion in favour of the respondents in
the year 1980 cannot be challenged at this length of time, the said F
promotees would be entitled to count their entire service for the purpose
of determining of seniority. The Tribunal also is of the view that even
though respondents 3 and 4 who are promotees successfully safeguarded
the interest of all promotees yet since all the promotees have not been
arrayed as party respondents no relief can be... granted to the appellants.
                                                                                 G
      -Mr. P.P. Rao, the learned senior counsel appearing for the appellants
raises two contentions in assailing the legality of the order of the Tribunal:

      (1) In view of the admitted position that the appellants - direct
recruits were appointed in accordance with the Recruitment Rules, 1965 H
    64                    SUPREME COURT REPORTS                   [1996] 2 S.C.R.

A   and the respondents promotees were appointed on promotion on ad hoc
    basis not in accordance with the procedure prescribed for promotion under
    1965 Recruitment Rules, the Tribunal erred in law in declaring the
    promotees to be senior to the direct recruits solely on the ground that the
    promotees were appointed on 27.9.1980 whereas the direct recruits were
    appointed on 29.9.1980.
B
         (2) Since the very principle of determination of inter se seniority
  adopted by the State Government was challenged, the only necessary party
  is the State itself and not the affected party and therefore non inclusion of
  affected party will not be fatal to the case. At any rate when some of the
C promotee appointees have been impleaded as parties and the Tribunal
  itself came to the conclusion that they successfully safeguarded the interest
  of the promotees the appellants could not have been refused relief on that
  score. On the question of delay and laches, Mr. Rao contends that the
  appellants do not challenged the so called ad-hoc appointments of respon-
  dents by way of promotion but they merely challenge the position assigned
D to them in the. selection list and the selection list having been finalised only
  in the year 1988, on 23.12.1988, the appellants' application before the
  Tribunal in 1989 by no stretch of imagination can be held to be barred on
  the principle of delay and laches.

E         Learned counsel appearing for the respondents while could not
    refute the contention of Mr. Rao with regard to erroneous application of
    the principles of determination of inter se seniority by the Tribunal, but
    merely contended that the respondents have served this length of time and
    many of them have been retired in the meantime, and therefore, alternation
    of the seniority need not be made by this Court.
F
          We are unable to accept the request made by the learned counsel
    appearing for the respondents and in our considered opinion all the
    contentions raised by Mr. Rao, learned counsel appearing for the appel-
    lants must succeed.
G       In the Direct Recruits case the Constitution Bench of this Court
    summarised.the legal position in paragraph 44 as follows :

             "(A) Once an incumbent is appointed to a post according to rule,
             his seniority has to be counted from the date of his appointment
H            and not according to the date of his confirmation.
I




"·                V.P. SHRIVASTAVA v. STATE [PATTANAIK, J.]                   .65

                 The Corollary of the above rule is that were the initial appoint-   A
             ment is only ad-hoc and not according to rules and made as a
             stop-gap arrangement, the officiation in such post cannot be taken
             into account for considering the seniority.

             (B) If the initial appointment is not made by following the proce-
             dure laid down by the rules but the appointee continues in the post     B "
             uninterruptedly till the regularisation of his service in accordance
             with the rules, the period of officiating service will be counted."

           We are not concerned with the other propositions laid down by this
     Court in the present case. In the case in hand the initial appointment of C
     the respondents on promotion not having been made following the proce-
     dure laid down by the Recruitment rules of 1965 and even though they are
     continuing in the post uninterruptedly but the Public Service Commission
     having not approved their appointments as yet, proposition B above will
     have no application. Consequently applying proposition A above, the ap-
     pellants direct recruits must br held senior to the respondents - private D
     respondents - ad-hoc promotees. The Tribunal obviously erred in law in
     not following the aforesaid authoritative pronouncement of this Court for
     determination of the inter se seniority between direct recruits and the
     promotees.
                                                                                     E
          In the three Judge Bench decision this Court in the case of State of
     W.B. and Others v. Aghore Nath Day and others, [1993] 3 S.C.C. 371, this
     Court held:

             that to enable his seniority to be counted from the date of initial
             appointment the incumbent of the post has to be initially appointed     F
             'according to rules'. Thus 'where initial appointment is only ad-hoc
             and not according to rules and made as a stop gap arrangement,
             the officiation in such posts cannot be taken into account for
             considering the seniority'.

           It was thus held that conclusions A and B of the Constitution Bench G
     in Direct Recruits case have to be read harmoneously and conclusion B
     cannot cover cases which are expressly excluded by conclusion A.

           In a more recent case of V. Sreenivasa Reddy and Others v. Govt. of
     A.P. and others, [1995] Suppl. (1) S.C.C. P. 572, where one of us (brother      H
    66                    SUPREME COURT REPORTS                     [1996) 2 S.C.R.
             I

A Ramaswamy, J.) was a member, all the decisions of this Court on the point
    have been considered and it has been laid down the temporary or ad-hoc
    appointments are not appointments in accordance with the rules and the
    temporary service cannot be counted towards the seniority.

          The conclusion of the Tribunal that non inclusion of the affected
B parties is fatal to the. appellants case is also unsustainable in law. It is to
   be stated that the appellants do not challenge the so called ad-hoc appoint-
   ments of the promotee respondents but they do challenge the position of
   the said ad-hoc promotee respondents over the appellants in the seniority
   list. In other words the very principle of 'determination of seniority' made
C by the State Government is under challenge and for such a case State is
   the necessary party who has been impleaded. It has been held by this Court
   in the case of General Manger, South Central Railway Secundrabad andAnr.
  'Etc. v. A. V.R. Siddhanti and Ors. Etc., [1974] 3 S.C.R. 207 :

             "As regards the second objection, it is to be noted that the decision
D
             of the Railway Board impugned in the writ petition contain ad- \
             ministrative rules of general application, regulating absorption in
             permanent departments, fixation of seniority, pay etc. of the
             employees of the erstwhile Grain Shop departments. The Respon-
             dents-petitioners are impeaching the validity of those policy
E            decisions on the ground of their being violative of Articles 14 and
             16 of the Constitution. The proceedings are analogous to those in .
             which the constitutionality of a statutory rule regulating seniority
             of government servants is assailed. In such proceedings the neces-
             sary parties to be impleaded are those against whom the relief is
F            sought, and in whose absence no effective decision can be rendered
             by the Court. In the present case, the relief is claimed only against
             the Railway which has been impleaded through its representative.
             No list or order fixing seniority of the petitioners vis-a-vis particular
             individuals pursuant to the impugned decisions, is being chal-
             lenged. The employees who were likely to be affected as a result
G            of the re-adjustment of the petitioner's seniority in accordance with
             the principles laid down in the Board's decision of October 16,
             1952 were, at the most, proper parties and not necessary parties,
             and their non-joinder could not be fatal to the writ petition."


H        · In the case of A. Janardhana v. Union of India and others, [1983] 2
                  V.P. SHRIVASTAVAv. STATE [PATTANAIK,J.]                     67

     S.C.R. 936, a similar contention was also repelled by this Court in the        A
     following words :

             "In this case, appellant does not claim seniority over particular
             individual in the background of any particular fact controverted by
             that person against whom the claim is made. The contention is that     B
             criteria adopted by the Union Government in drawing-up the
             impugned seniority list are invalid and illegal and the relief is
             claimed against the Union Government restraining it from upset-
             ting or quashing the already drawn up valid list and for quashing
             the impugned seniority list. Thus the relief is claimed against the
             Union Government and not against any particular individual. In         C
             this background, we consider it unnecessary to have all direct
             recruits to be impleaded as respondents."

           Further in view of finding of the Tribunal that respondents 3 and 4
     successfully safeguarded the interest of the promotees. The Tribunal erred     D
     in law in holding that non-inclusion of the affected parties is fatal to the
     proceeding. It has been held by this Court in the case of Prabodh Venna
     and Others, Etc. v. State of Uttar Pradesh and others, Etc., [1985) 1SCR216,
     that:

             "A High Court ought not to hear and dispose of a writ petition         E
             under Article 226 of the Constitution without the persons who
             would be vitally affected by its judgment being before it as respon-
             dents or at least some of them being before it as respondents in a
             representative capacity if their number is too large to join them as
             respondents individually."                                             F

           Even in Janardhana case referred to supra this Court also rejected
     a similar objection on the ground that 9 of the direct recruits having been
     impleaded as party, therefore the case of direct recruits has not gone
     unrepresented and therefore the non-inclusion of all the 400 and odd direct
     recruits is not fatal to the proceedings.                                   G



-·
           In the aforesaid circumstances we have no hesitation to come to the
     conclusion that the Tribunal was wholly in error in coming to the con-
     clusion that the appellants application becomes unsustainable in the ab-
     sence of all the promotees being impleaded as party.                           H
    68                    SUPREME COURT REPORTS                  [1996) 2 S.C.R.

A         So far as question of delay and !aches is concerned, as we have
    noticed earlier the final gradation list was prepared only on 23.12.1988 and
    the appellants had approached the Tribunal in 1989 and therefore, the
    question of delay does not arise. In the aforesaid premises the impugned


B
    order of the Tribunal is set aside and this appeal is allowed. The appellants
    are entitled to get their seniority over the ad-hoc promotees who were
    appointed as Assistant Director on 27.9.1980.' The respondent-State is
                                                                                    ....
    directed to re-draw the seniority. The appellants' application before the
    Tribunal stand allowed. There will be no order as to costs. The seniority
    list may be re-drawn up within 4 months from the date of the receipt of
    this order and consequential benefits may be given.
c
    R.A.                                                        Appeal allowed.




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