Arijit Pasayat, J. - (1.) Challenge in these appeals is to the order passed by the Andhra Pradesh Administrative Tribunal at Hyderabad (in short "the Tribunal"). The controversy lies within a very narrow compass i.e. the date of seniority of the appellant and, therefore, a brief reference to the factual aspects would suffice.
(2.) Appellant joined as Welfare Officer in Andhra Pradesh Jails Department on 8-9-1978. He completed his probation on 5-10-1981. On 16-6-1983, nine posts of Deputy Superintendent of Jails were notified to be filled up and on 25-8-1983 an advertisement was issued by a requisite Gazette Notification by the Andhra Pradesh Public Service Commission (in short the Commission) for filling up the aforesaid vacancies by direct recruitment. Five years service is required for an employee other than a direct recruit to be eligible for consideration for the said post. On 16-10-1984, 11 prisons welfare officers and jailors were appointed as Deputy Superintendents of Jails on ad hoc basis. Appellant joined as Deputy Superintendent of Jails on 20-10-1984 on the aforesaid ad hoc basis. The Commission conducted the written examination in October, 1985 and interviewed were conducted in October, 1986. The results were declared in 1987. By Government order dated 17-12-1987, four persons were given appointment, but only three joined. Subsequently, two persons were appointed on 4-5-1988 and 19-6-1989. A Government Order No. 595 dated 1-10-1990 was issued by the Government where the date from which service as Deputy Superintendent of Jails was to be regularised was indicated. While the dates of regularisation for direct recruits were indicated to be the date they joined, so far as the appellant is concerned, it was indicated to be the date when he had joined on ad hoc basis in 1984. This was questioned by the direct recruits before the Tribunal. They raised two contentions in the applications filed under S.19 of the Administrative Tribunals Act, 1985 (in short the Act). They were (i) their seniority should be counted from the date of notification i.e. 16-6-1983; (ii) and in any event, the dates fixed by the non-direct recruits were not legal as their appointments were on purely ad hoc basis and merely as stop gap arrangement since they were appointed in respect of the posts for which requisitions had been sent to the Commission by the State Government. The Tribunal accepted the second contention. It came to hold that there was no scope for retrospective regularisation and deemed probation. Reference was made to R. 4 of the Andhra Pradesh Deputy Superintendents of Jails Service Rules, 1974 (in short "the Rules"). These rules are framed under Art. 309 of the Constitution of India, 1950 (in short the Constitution). As aforenoted, the judgment of the Tribunal disposing of the 5 original applications is the subject-matter of challenge in these appeals.
(3.) Mr. S. K. Dholakia, learned senior counsel appearing for the appellant submitted that the approach of the Tribunal is erroneous. The method of appointment is indicated in Rule 2 of the Rules. There are three sources of appointment, i.e. (i) recruitment by transfer of jailors in jails other than sub-jails in Andhra Pradesh Jail Subordinate Services; (ii) recruitment by transfer of Welfare Officers of Branch II of the aforesaid services and (iii) by direct recruitment if no qualified or suitable person is available by any of the other two methods. Where the recruitment is by transfer, the concerned officer is required to have served as a Jailor in jail other than sub-jails or as Welfare Officer for not less than five years. There is a requirement that every person appointed to the post by transfer has to be on probation for a specified period. Appellant was recruited in terms of the Rules and merely because his appointment was styled as an ad hoc appointment the same will not make a difference. The appointment was on the basis of the Rules and not on the basis of the Government order. Since there was vacancy the appointments could have been made and have been made in terms of the Rules. Strong reliance was placed on Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra and others (1990) 2 SCC 715, more particularly, para 47, conclusions (A) and (B) which read 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 and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment 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 procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rule, the period of officiating service will be counted." In response, learned counsel for the respondents submitted that the Tribunal has rightly analysed the legal position. The appointments were stop-gap, emergency or fortuitous arrangements and it cannot be treated to be appointment under the Rules. The probation period started only when there was a regular appointment in terms of the Rules and not on any point of time before that date.;